                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           JUL 18 2000
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 TIMOTHY R. LOCKABY,

               Petitioner-Appellant,                    No. 99-6243
          v.                                           (W.D. Okla.)
 KEN KLINGER,                                     (D.C. No. CV-98-756-T)

               Respondent-Appellee.


                            ORDER AND JUDGMENT          *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.         **




      Timothy Lockaby, proceeding pro se, appeals the dismissal of his petition

for habeas relief filed under 28 U.S.C. § 2254. He has filed a motion for a

certificate of appealability. On August 6, 1992, Mr. Lockaby pleaded guilty to

one count of child beating after former conviction of a felony. Mr. Lockaby



      *
       This order and judgment is not binding precedent, except under the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.

      **
         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)(2); 10th Cir. R. 34.1(G).
The case is, therefore, ordered submitted without oral argument.
moved to withdraw his plea approximately five years after entry of judgment

when he filed an application for post-conviction relief in Oklahoma state district

court in November 1997. The district court denied relief on January 6, 1998. The

Oklahoma Court of Criminal Appeals remanded the case to the district court,

which again denied relief on February 24, 1998. The Oklahoma Court of

Criminal Appeals affirmed the district court’s denial of relief on April 9, 1998.

Mr. Lockaby filed his § 2254 petition for relief on June 2, 1998.

      The magistrate judge’s report and recommendation concluded that Mr.

Lockaby’s petition should be denied as untimely. Because Mr. Lockaby’s

challenged conviction became “final” before the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2241, the

one-year tolling provision set forth in § 2242(d)(2) began to run on April 24,

1996. See Lindh v. Murphy , 521 U.S. 320, 326-27 (1997);    Hoggro v. Boone , 150

F.3d 1223, 1225 (10th Cir. 1998). Mr. Lockaby did not seek post-conviction

relief in state court until three months after the one-year period had expired. Mr.

Lockaby’s claims for equitable tolling are misplaced, because he has not

demonstrated any extraordinary way that he has been prevented from asserting his

rights. See Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). In addition, Mr.

Lockaby has not asserted his factual innocence.   See Bousely v. United States ,




                                           -2-
118 S. Ct. 1604, 1611 (1998). The district court adopted the magistrate judge’s

report and recommendation.

      We have thoroughly reviewed Mr. Lockaby’s application for a certificate of

appealability, his brief, the magistrate judge’s report and recommendation, the

district court’s order and the entire record before us. We DENY Mr. Lockaby’s

application for a certificate of appealability for substantially the same reasons set

forth in the magistrate judge’s report and recommendation. We also DENY his

motion to proceed in forma pauperis and DISMISS the appeal.



                                        Entered for the Court,



                                        Robert H. Henry
                                        Circuit Judge




                                          -3-
