                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               AUG 20 1999
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 ROBERT LEE CURRY,

                Petitioner - Appellant,

           v.                                               No. 99-5066
                                                      (D. Ct. No. 98-CV-18-K)
 KEN KLINGER,                                               (N.D. Okla.)

                Respondent - Appellee.


                             ORDER AND JUDGMENT              *




Before TACHA , MCKAY , and MURPHY , Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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.

       Mr. Curry, pro se, appeals the district court’s denial of his habeas petition

and requests a certificate of appealability. We deny his request for a certificate of

appealability pursuant to 28 U.S.C. § 2253(c) and dismiss the appeal.


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
      On June 23, 1994, a jury convicted petitioner of first degree murder in

Tulsa County District Court. He was sentenced to life imprisonment on July 8,

1994. Mr. Curry appealed, and on December 27, 1995, the Oklahoma Court of

Criminal Appeals affirmed his conviction and sentence. On December 26, 1997,

petitioner filed an application for post-conviction relief in the state trial court.

The state trial court denied relief on February 13, 1997. Petitioner filed a post-

conviction appeal in the Oklahoma Court of Criminal Appeals on October 20,

1997 which the court dismissed as untimely on November 24, 1997. Petitioner

thereafter filed a federal petition for writ of habeas corpus on January 9, 1998

which the district court denied. The district court also denied a certificate of

appealability. Petitioner timely filed a notice of appeal and seeks a certificate of

appealability from this court.

      Mr. Curry argues that the district court erred in finding his habeas corpus

petition time barred. He asserts that because the issues he raised went to the

jurisdiction of the state trial court to try him or indicated his actual innocence of

the crime, he qualified for equitable tolling or a fundamental miscarriage of

justice exception. We disagree.

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides

that “[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.”


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28 U.S.C. § 2244(d)(1). Generally, the limitation period begins to run on the date

petitioner’s conviction becomes final.      See 28 U.S.C. § 2244(d)(1)(A). Because

petitioner’s conviction became final before the enactment of the AEDPA, his one-

year limitation period began to run on April 24, 1996, the statute’s effective date.

See, e.g. , Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). Mr. Curry did

not file his federal habeas petition until January 9, 1998 – well past the one-year

limitations period. However, we toll the period of time which Mr. Curry spent

properly pursuing state post-conviction relief.      See 28 U.S.C. § 2244(d)(2);

Hoggro , 150 F.3d at 1226. Thus, we toll the limitations period from December

26, 1996 to February 13, 1997, the time during which Mr. Curry’s application for

post-conviction relief in the state trial court was pending.   1
                                                                   Therefore, petitioner




       1
        Because Mr. Curry untimely filed his appeal to the Oklahoma Court of Criminal
Appeals, we toll the limitation time only for the period his application for post-conviction
relief was pending in the state trial court. “We may not count the additional time during
which [petitioner] appealed the denial of his application for post-conviction relief because
that appeal was untimely.” Hoggro, 150 F.3d at 1226 n.4.

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had 118 days from February 13, 1997 to file his federal habeas petition. Because

he did not file the petition until January 9, 1998, almost seven months beyond the

appropriate deadline, he is time barred from seeking habeas corpus relief.

Moreover, the facts contained in this record do not support equitably tolling the

AEDPA limitations period.

      We therefore deny petitioner’s request for a certificate of appealability

because he has not made a substantial showing of the denial of a constitutional

right. Mr. Curry has failed to demonstrate that the issues raised are debatable

among jurists, that a court could resolve the issues differently, or that the

questions deserve further proceedings.    See Barefoot v. Estelle , 463 U.S. 880, 893

n.4 (1983).

      This appeal is DISMISSED.


                                         ENTERED FOR THE COURT,


                                         Deanell Reece Tacha
                                         Circuit Judge




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