                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           MAR 21 2001
                          FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 TERRY JOE CORTEZ,

              Petitioner - Appellant,

 v.                                                     No. 00-7123
                                                      (No. CV-99-567-S)
 JAMES SAFFLE, Director, The                             (E.D. Okla.)
 Oklahoma Department of Corrections;
 STATE OF OKLAHOMA,

              Respondents - Appellees.


                           ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.


      Pro se petitioner Terry Joe Cortez, an Oklahoma state prisoner, seeks a

certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) to challenge

the district court’s dismissal of his petition for a writ of habeas corpus as time-

barred under 28 U.S.C. § 2244(d). We conclude that petitioner has not

demonstrated extraordinary circumstances warranting equitable tolling of the


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The Court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
period of limitation, and we deny COA.

       On May 16, 1988, petitioner was charged with possession of contraband in

a penal institution, Okla. Stat. Ann. tit. 57, § 21 (West 1988), in Oklahoma state

court. He filed an application for a competency determination April 25, 1989,

but waived his right to the hearing two days later. After entering a plea of nolo

contendere, petitioner was sentenced to twenty years imprisonment. On May 8,

1989, Cortez filed a motion to withdraw his plea. The motion was denied August

8, 1989, and the denial was affirmed by the Oklahoma Court of Criminal Appeals

(“OCCA”) on August 19, 1992.

       Petitioner filed an application for post-conviction relief in state court on

October 1, 1998. The application was denied, and that denial was affirmed by

the OCCA on April 30, 1999. Petitioner filed his federal habeas application on

October 26, 1999.

       Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, prisoners generally have one

year from the date on which their convictions become final to petition for federal

habeas corpus relief.   28 U.S.C. § 2244(d)(1). A conviction becomes final “by

the conclusion of direct review or the expiration of the time for seeking such

review.” § 2244(d)(1)(A). The one-year period of limitation is subject to

equitable tolling in extraordinary circumstances.   See Miller v. Marr , 141 F.3d


                                            -2-
976, 978 (10th Cir. 1998).

       In his Application for COA and Opening Brief, petitioner does not argue

that his circumstances warrant equitable tolling but rather that “pre-AEDPA

standards” should apply to his case. (Petitioner’s Br.     passim .) We have held that

“prisoners whose convictions became final on or before April 24, 1996 must file

their [habeas] motions before April 24, 1997.”     1
                                                       United States v. Simmonds , 111

F.3d 737, 746 (10th Cir. 1997);    Miller , 141 F.3d at 977. Although the period of

limitation is tolled for the “time during which a properly filed application for

State post-conviction or other collateral review . . . is pending,” 28 U.S.C.

§ 2244(d)(2), Cortez’s state post-conviction petition was not filed until October

1, 1998, well after the period of limitation expired on April 24, 1997.

       Cortez argued to the district court that he was not aware of his right to

pursue his mental incompetence claim under 28 U.S.C. § 2254 until October

1999 when he consulted with a fellow inmate who was familiar with “this area of

the law.” (I R., Doc. 7 at 8.) Because his ignorance of the law is not an

extraordinary circumstance warranting equitable tolling,       see Miller , 141 F.3d at

978, we conclude that Cortez’s habeas application is time-barred.


       1
          The OCCA affirmed the district court’s denial of petitioner’s motion to
withdraw his plea August 19, 1992. His conviction became final ninety days
later—on or about November 17, 1992—when his time to file a petition for writ
of certiorari in the United States Supreme Court expired.  Locke v. Saffle , 237
F.3d 1269, 1273 (10th Cir. 2001).

                                            -3-
The application for COA is   DENIED , and the appeal is   DISMISSED .

The mandate shall issue forthwith.



                                             Entered for the Court,



                                             Carlos F. Lucero
                                             Circuit Judge




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