                   UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT



 ALLAN HOGGRO,

       Petitioner-Appellant,
 v.                                                     No. 97-6383

 BOBBY BOONE, Warden,

       Respondents-Appellees.



                                      ORDER
                                Filed July 24, 1998


Before BALDOCK, EBEL AND MURPHY, Circuit Judges.


      Appellee’s petition for rehearing is denied.

      The suggestion for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service as required by Fed. R. App. P. 35. As

no member of the panel and no judge in regular active service on the court

requested that the court be polled, the suggestion is also denied.

      The order and judgment filed on June 24, 1998, shall be published. The

published opinion is attached to this order.

                                               Entered for the Court
                                               PATRICK FISHER, Clerk of Court
                                                                F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                                       PUBLISH
                                                                 JUN 24 1998
                     UNITED STATES COURT OF APPEALS
                                                            PATRICK FISHER
                                   TENTH CIRCUIT                     Clerk


 ALLAN HOGGRO,

          Petitioner-Appellant,
 v.
                                                            No. 97-6383
 BOBBY BOONE, Warden,

          Respondents-Appellees.




                   Appeal from the United States District Court
                      for the Western District of Oklahoma
                            (D.C. No. Civ-97-0861-M)


Submitted on the briefs: *

Allen Hoggro, pro se, for appellant.

Alicia A. George, Assistant Attorney General for the State of Oklahoma, for
appellees.


Before BALDOCK, EBEL and MURPHY, Circuit Judges.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered
submitted without oral argument.
EBEL, Circuit Judge.


      This appeal involves the proper application of the new one-year statute of

limitations for habeas corpus petitions under the Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, § 101, 110 Stat. 1321 (codified

at 28 U.S.C.A. §§ 2244(d)(1) - (d)(2) (West Supp. 1998)). Because the district

court failed to apply the statutorily prescribed tolling provision in 28 U.S.C.A.

§ 2244(d)(2), we grant the appellant’s request for a certificate of appealability

under 28 U.S.C.A. §§ 2253(c)(1)(A) & (c)(2), and we reverse the dismissal of the

appellant’s habeas corpus petition.



                                      Background

      The petitioner Allan Hoggro was serving a ten-year sentence for various

state offenses on December 17, 1993, when he escaped from the state penitentiary

where he was being held in Oklahoma County, Oklahoma. Upon Hoggro’s

recapture, the Oklahoma County District Attorney’s office filed a criminal

information against Hoggro charging him with escape. Before this charge was

adjudicated, the Oklahoma Department of Corrections brought administrative

charges against Hoggro for the escape. On February 1, 1994, prison authorities

found Hoggro in violation of department regulations, ordered him to forfeit all of


                                         -2-
his accumulated good time credits (approximately 1,200 days), to be confined to

disciplinary segregation for 30 days, and to be fined $15.

      Eight months later, Hoggro’s state criminal charges were adjudicated

through a guilty plea. On October 17, 1994, the Oklahoma County District Court

sentenced Hoggro to an 18-year prison term to be served concurrently with his

pre-existing sentence. Hoggro did not file a direct appeal or a motion to

withdraw his guilty plea.

      Nevertheless, on September 26, 1996, Hoggro filed a pro se application for

post-conviction relief in Oklahoma state court alleging that his conviction for

escape violated the Double Jeopardy Clause of the Fifth Amendment, as applied

to the states, because he already was “punished” for the escape through the

administrative discipline handed down by the Department of Corrections. On

October 25, 1996, the state district court denied Hoggro’s petition on the grounds

that the administrative discipline did not constitute “punishment” subject to the

Double Jeopardy Clause. Hoggro did not perfect his appeal of this decision to the

Oklahoma Court of Criminal Appeals until December 9, 1996, and because his

appeal was more than thirty days after the decision of the state district court, on

December 26, 1996, the Court of Criminal Appeals dismissed Hoggro’s appeal as




                                         -3-
untimely. On February 6, 1997, the Court of Criminal Appeals denied a motion

for reconsideration that the court said it had received from Hoggro. 2

      Hoggro mailed his pro se petition for federal habeas corpus relief to the

Clerk of the Western District of Oklahoma on May 9, 1997, but the petition was

not stamped as “filed” by the court until May 27, 1997. Hoggro’s federal petition

again raised the same double jeopardy argument he presented in the state courts.

The magistrate judge concluded that Hoggro’s May 9, 1997, mailing was not

sufficient to meet the one-year limitations period of the revised habeas corpus

statute. Hoggro filed an Objection to the magistrate judge’s recommendation,

arguing that the magistrate judge had incorrectly applied the new statute of

limitation. The district court, however, adopted the magistrate’s report and

recommendation in toto. The district court also denied a certificate of

appealability for Hoggro.

      Hoggro subsequently filed a timely notice of appeal in the district court, as

well as an application for a certificate of appealability from this court.




      2
       Hoggro has insisted in the federal courts that he never filed a motion for
reconsideration, and he points out that the Court of Criminal Appeals has not
responded to his request to provide him with a copy of the alleged motion for
reconsideration.

                                         -4-
                                     Discussion

      In 1996, Congress amended the long-standing prior practice in habeas

corpus litigation that gave a prisoner virtually unlimited amounts of time to file a

habeas petition in federal court. In the Antiterrorism and Effective Death Penalty

Act (AEDPA), Congress established a one-year period of limitations for habeas

petitions. 3 See 28 U.S.C.A. § 2244(d)(1). This limitation period generally begins

to run from the date on which a prisoner’s direct appeal from his conviction


      3
          The language of the new habeas limitation period provides:

             (1) A 1-year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the judgment of a
      State court. The limitation period shall run from the latest of –
                     (A) the date on which the judgment became final by the
             conclusion of direct review or the expiration of the time for seeking
             such review;
                     (B) the date on which the impediment to filing an application
             created by State action in violation of the Constitution or laws of the
             United States is removed, if the applicant was prevented from filing
             by such State action;
                     (C) the date on which the constitutional right asserted was
             initially recognized by the Supreme Court, if the right has been newly
             recognized by the Supreme Court and made retroactively applicable
             to cases on collateral review; or
                     (D) the date on which the factual predicate of the claim or
             claims presented could have been discovered through the exercise of
             due diligence.
             (2) The time during which a properly filed application for State post-
      conviction or other collateral review with respect to the pertinent judgment
      or claim is pending shall not be counted toward any period of limitation
      under this subsection.

28 U.S.C.A. § 2244(d).

                                         -5-
became final. See id. The implication of this language could mean that a

prisoner whose conviction became final more than a year before the AEDPA went

into effect would have no avenue to bring a habeas petition because his petition

would always be out of time under the new language. However, recognizing that

such a result raises retroactivity problems, the circuits have held that for prisoners

whose convictions became final before April 24, 1996, the one-year statute of

limitation does not begin to run until April 24, 1996. See Burns v. Morton, 134

F.3d 109, 111 (3d Cir. 1998); Calderon v. United States District Court for the

Central District of California, 128 F.3d 1283, 1287 (9th Cir. 1997); Lindh v.

Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), rev’d on other grounds, 117

S. Ct. 2059 (1997); see also United States v. Simmonds, 111 F.3d 737, 744-46

(10th Cir. 1997) (applying the same rule against retroactivity to the parallel one-

year statute of limitations for federal post-conviction relief under 28 U.S.C.A.

§ 2255).

      The magistrate judge’s recommendation to dismiss Hoggro’s habeas

petition as untimely relies entirely on the language in Simmonds in which this

court announced that “prisoners whose convictions became final on or before

April 24, 1996, must file their § 2255 motions before April 24, 1997.” See

Simmonds, 111 F.3d at 746. The magistrate judge said there is “no justification”




                                         -6-
in Hoggro’s case for going beyond the April 24, 1997, deadline announced in

Simmonds. We disagree.

      To understand Simmonds, we must keep in mind the difference between a

motion under 28 U.S.C.A. § 2255 and a habeas petition under 28 U.S.C.A.

§ 2254, with the complimentary limitation period for habeas petitions under 28

U.S.C.A. § 2244(d). In Simmonds, the court dealt with a § 2255 motion

challenging the defendant’s underlying conviction in federal court. See

Simmonds, 111 F.3d at 739. Hoggro’s § 2254 habeas petition, however,

challenges his conviction in state court. The new statutes of limitation in AEDPA

– § 2244(d)(1) and § 2255 – recognize this important difference by including in

§ 2244(d)(2) statutory language that tolls from the limitations period any time

spent pursuing a state post-conviction relief. See 28 U.S.C.A. § 2244(d)(2).

      Obviously, federal courts considering a § 2255 motion have no occasion to

consider time spent on state post-conviction proceedings because no such state

proceedings are likely to occur in a federal criminal case. In Simmonds, we did

not need to address the possible effect of state-court litigation on § 2255’s one-

year limitations period because the defendant had been convicted in federal

district court in Kansas. Thus, the apparently firm deadline of April 24, 1997, in

Simmonds is appropriate only for motions like Simmonds’ under § 2255.




                                         -7-
      The situation is entirely different under § 2254, where Congress has

explicitly instructed the federal courts – through § 2244(d)(2) – to toll time spent

in state court. See 28 U.S.C.A. § 2244(d)(2). The clear force of the statutory

language in § 2244(d)(2) requires the federal courts to toll time spent in state-

court post-conviction litigation. The language of Simmonds cannot justify the

district court’s refusal to toll Hoggro’s time spent pursuing post-conviction relief

in the Oklahoma courts.

      Applying this understanding of the limitations period in § 2244(d) to

Hoggro’s case, we conclude that his habeas petition meets the one-year

limitations period. Hoggro’s one-year limitations clock began to run on April 24,

1996, when AEDPA went into effect. Hoggro mailed his federal habeas petition

on May 9, 1997 4 – 380 days after AEDPA went into effect. However, the time

during which Hoggro had “a properly filed application for State post-conviction

or other collateral review” should be subtracted from this 380 days. Thus, the 29



      4
        In Hoggro’s Reply to Defendants’ Motion to Dismiss, he included a copy
of the prison mailing receipt that shows his habeas petition was placed in the
prison mail system on May 9, 1997. This proof of mailing is sufficient to
establish that Hoggro’s pro se prisoner petition was “filed” on May 9, 1997. See
Houston v. Lack, 487 U.S. 266, 270 (1988) (holding that pro se prisoner’s notice
of appeal is “filed” when he “delivers such notice to the prison authorities for
forwarding to the clerk of the District Court”); Swoboda v. Dubach, 992 F.2d 286,
288-89 (10th Cir. 1993) (holding that when a prison does not maintain a special
mail system for legal mail, then proof of a pro se prisoner’s mailing through the
regular prison mail system is sufficient to establish his notice of appeal is filed.)

                                         -8-
days from September 26, 1996 (when Hoggro filed his application for post-

conviction relief) to October 25, 1996 (when the state district court denied his

application) should not be counted. 5 The resulting elapsed time on Hoggro’s

limitations clock is 351 days, well within the one-year limit.

      For these reasons, we GRANT the application for a certificate of

appealability, and we REVERSE the district court’s order.




      5
       We may not count the additional time during which Hoggro appealed the
denial of his application for post-conviction relief because that appeal was
untimely. Section 2244(d)(2) requires a court to subtract time only for the period
when the petitioner’s “properly filed” post-conviction application is being
pursued. See 28 U.S.C.A. § 2244(d)(2).

                                        -9-
