                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        AUG 16 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 BILL ROBERT CATHEY,

          Petitioner-Appellant,
 v.
                                                       No. 99-7047
                                               (D.C. No. CIV 98-CV-268-S)
 GARY GIBSON and ATTORNEY
                                                       (E.D. Okla.)
 GENERAL OF THE STATE OF
 OKLAHOMA,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Petitioner-Appellant Bill Robert Cathey (“Cathey”) is currently incarcerated

at the Oklahoma State Penitentiary in McAlester, Oklahoma pursuant to a state

conviction and sentence which became final prior to the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Accordingly,



      *
        After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
he had until April 24, 1997, plus “any time during which a properly filed

application for State postconviction or other collateral review with respect to the

pertinent judgment or claim is pending,” in order to file his federal petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Hoggro v. Boone, 150

F.3d 1223, 1226-27 (10th Cir. 1998); 28 U.S.C. § 2244(d)(2).

      Here, Cathey filed his federal habeas petition in the United States District

Court for the Eastern District of Oklahoma on June 8, 1998. The district court

determined that, at most, the time for Cathey to file his federal habeas petition

should have been tolled 122 days, which would have given him until the end of

August 1997 to meet AEDPA’s timing requirements. Because Cathey filed his

federal habeas petition on June 8, 1998, the district court dismissed the petition as

time barred. The district court also denied Cathey a certificate of appealability

(“COA”).

      Before this court, in support of his application for a COA, Cathey argues

that, in violation of the United States Supreme Court’s decision in Houston v.

Lack, 487 U.S. 266 (1988), the Oklahoma Court of Criminal Appeals erroneously

concluded that his state postconviction application was untimely, which led the

federal district court to conclude erroneously that his federal habeas petition was

time barred. We find that Cathey’s argument is without merit. Because he has




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failed to make a “substantial showing of the denial of a constitutional right,” as

required by 28 U.S.C. § 2253(c)(2), we deny Cathey’s application for a COA.



      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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