                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               FEB 22 2001
                                     TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                    Clerk

 LADONNA FAYE JUSTICE,

           Petitioner - Appellant,
 v.
                                                           No. 00-5212
                                                     (D.C. No. 99-CV-311-H)
 NEVILLE O. MASSIE; THE
                                                  (Northern District of Oklahoma)
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


       Appellant LaDonna Faye Justice is an Oklahoma state prisoner; she appears

before this Court pro se and seeks a certificate of appealability (“COA”).       See 28

U.S.C. § 2253(c). Justice raises seven arguments in support of her request for

COA. She argues that (1) she was denied due process when she was unable to

retain counsel of her choice, (2) she was denied effective assistance of counsel



       *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 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judgment is not binding precedent, except under the doctrines of law of the case,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.
when retained counsel was allowed to withdraw without demonstrating good

cause, (3) she was denied a fair trial when a juror was misinformed as to the

nature of the evidence she would be required to view, (4) she was denied a fair

trial by the prosecutor’s inflammatory statements, (5) she was denied due process

by the court’s refusal to give certain jury instructions and by the giving of an

allegedly erroneous instruction, (6) she was denied a fair trial because a deal

made between the state and one of its witnesses was not disclosed to the jury, and

(7) the evidence was insufficient to support her conviction beyond a reasonable

doubt.

         The district court dismissed Justice’s 28 U.S.C. § 2254 application for a

writ of habeas corpus as time barred.     See 28 U.S.C. § 2244(d). The court also

denied petitioner’s subsequent request for a COA concluding, after consideration

of the record and Justice’s arguments, that she failed to make a substantial

showing of the denial of a constitutional right.   See 28 U.S.C. § 2253(c).

         Justice’s petition for a writ of habeas corpus is governed by the provisions

of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, 110 Stat. 1214 (“AEDPA”). Under AEDPA, “[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.” 28 U.S.C. § 2244(d)(1). The

limitations period begins to run on the date when the judgment at issue


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“bec[omes] final by the conclusion of direct review or the expiration of the time

for seeking such review.”    § 2244(d)(1)(A). The period is tolled during the time

in which “properly filed” state post-conviction reviews are pending.    § 2244(d)(2).

       After a jury trial in Oklahoma state court, Justice was convicted of First-

Degree Murder and sentenced to life imprisonment without parole. On October

22, 1996, her appeal to the Oklahoma Court of Criminal Appeals (“OCCA”) was

dismissed, and her conviction was affirmed. She did not seek a writ of certiorari

with the United States Supreme Court; accordingly, the judgment against her

became final for purposes of AEDPA 90 days later on about January 20, 1997.

See Locke v. Saffle , No. 00-6210, -- F.3d --, 2001 WL 82285 (10th Cir. Jan. 31,

2001). Absent any tolling events, Justice was required to file her application for

writ of habeas corpus within one year, i.e., by January 20, 1998.

       Justice did not file for state post-conviction relief until June 29, 1998—a

year and five months after the AEDPA limitations period began to run. Her

petition is therefore time-barred unless she can demonstrate exceptional

circumstances warranting equitable tolling of the limitations period.   See Miller v.

Marr , 141 F.3d 976, 978 (10th Cir. 1998).

       In this Court, petitioner raises only one argument in support of her late

filing. She asserts that “her time was stopped” by a motion for new trial filed in

the OCCA on January 29, 1996, for which she allegedly has not received a ruling.


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The record, however, demonstrates that her new trial argument was disposed of in

the OCCA’s October 1996 opinion. Her new trial motion was based on the

argument that her due process rights were violated when the state did not disclose

that its witness McGowen traded testimony against her in exchange for lenient

treatment in the charges pending against him. In its opinion affirming her

conviction, the OCCA found that “nothing in this record . . . indicate[s] that

McGowen was paid for his testimony or granted immunity from prosecution. . . .

All of . . . [the relevant] information was available to the jury to be used in

assessing his credibility.”   Justice v. Oklahoma , No. F-95-730, slip op. at *10

(Okla. Crim. App. Oct. 22, 1996).

       Additionally, Justice has proceeded as if her direct appeals were completed

and has never, prior to this appeal, raised the claim that her direct appeals were

pending. She applied for state post-conviction relief and appealed the denial of

that application to the OCCA. After the OCCA affirmed the denial of her request,

she initiated these federal post-conviction proceedings. The availability of post-

conviction proceedings is premised on the finality of the direct proceedings.       See

Walker v. Oklahoma , 933 P.2d 327, 330-31 & n.7 (Okla. Crim. App. 1997)

(“[T]he post-conviction statutes have always provided applicants with only very

limited grounds upon which to attack their ‘final’ judgments.” (citing      Teague v.

Lane , 489 U.S. 288, 295 (1989), for the proposition that “final means a case


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where the judgment of conviction was rendered, the availability of appeal

exhausted, and the time for petition for certiorari had elapsed” (internal

quotations and citations omitted))). Given that the Oklahoma state courts

entertained Justice’s state post-conviction requests and that Oklahoma post-

conviction proceedings only follow from “final” judgments, this Court does not

now find that Justice’s state direct proceedings survived such that they tolled the

AEDPA limitations period.

         Justice has not complied with the requirements of § 2244(d) and has raised

no circumstances that justify equitable tolling of the limitations period.

Accordingly, her application for a COA is DENIED, and her appeal is

DISMISSED. See also Preston v. Gibson , 234 F.3d 1118, 1120-21 (10th Cir.

2000).

         The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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