                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAY 28 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 EDGAR MILTON THOMPSON,

          Petitioner-Appellant,

               v.                                       No. 98-3270
                                                  (D.C. No. 98-3009-DES)
 CHARLES E. SIMMONS;                                     (D. Kan.)
 ATTORNEY GENERAL OF
 KANSAS,

          Respondents-Appellees.




                            ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, the panel has determined

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). Therefore, the case is ordered

submitted without oral argument.




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        This order and judgment is not binding precedent, except under the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

      Edgar Thompson, a state prisoner appearing pro se, seeks a certificate of

appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2254

habeas petition on statute of limitation grounds. As Thompson has failed to make

a “substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), we deny a certificate of appealability and dismiss the appeal   .

      Thompson pleaded guilty in 1992 to one count of indecent liberties with a

child and one count of assault, and was sentenced to three to ten years’

imprisonment. His appeal in state court was affirmed. Thompson filed an

application for post-conviction relief on February 26, 1996, and, while the

application was still pending, he filed a habeas petition with the Kansas Supreme

Court based on the same grounds as those asserted in his application. His state

habeas petition was denied on September 6, 1996, and Thompson filed his federal

habeas petition on January 12, 1998. The district court dismissed the petition as

untimely under 28 U.S.C. § 2244(d)(1).

                                           II.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one-

year limitation period applies to the filing of a habeas petition by a person in

custody pursuant to a state court judgment. The limitation period runs from the

date on which a judgment becomes final by conclusion of direct review or


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expiration of time for seeking review. 28 U.S.C. § 2244(d)(1)(A). A petitioner

whose conviction became final on or before April 24, 1996 (the effective date of

the AEDPA), has one year from that date to file a habeas petition.         Miller v. Marr ,

141 F.3d 976, 977 (10th Cir. 1998).

       The AEDPA identifies circumstances requiring a tolling of the limitation

period. See 28 U.S.C. § 2244(d)(1) & (2). The only provision relevant here is

“[t]he 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” the one-year time limit.       Id. § 2244(d)(2). Although

Thompson had a valid post-conviction application pending in state court from

April 24, 1996, through September 6, 1996, once the Kansas Supreme Court

denied his state habeas petition on September 6, 1996, the clock began to run on

his one-year federal habeas time limitation period. Accordingly, Thompson had

until September 6, 1997, to file a federal habeas petition and his petition filed on

January 12, 1998, was outside the statute of limitations.

       Thompson suggests he is actually innocent of the crimes to which he

pleaded guilty. While we have intimated actual innocence may be grounds for

equitable tolling under § 2244(d)(1), we have emphasized that prisoners must

diligently pursue their claims to avail themselves of equitable tolling.       See Miller ,

141 F.3d at 978. Further, Thompson has not supported his allegation of


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innocence with evidence sufficient to undermine our confidence in the outcome of

his criminal proceedings.   See Schlup v. Delo , 513 U.S. 298, 316 (1995).

      Thompson’s application for a certificate of appealability is DENIED and

the appeal is DISMISSED. The mandate shall issue forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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