                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 23 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 EDDIE LEE,

           Petitioner-Appellant,
 v.                                                       No. 99-6286
 KEN KLINGER,                                       (D.C. No. CIV-98-68-M)
                                                          (W.D.Okla.)
           Respondent-Appellee.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.


       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.

       Eddie Lee appeals the district court’s denial of his 28 U.S.C. § 2254

petition for habeas corpus relief. Lee seeks a certificate of appealability and

leave to proceed on appeal in forma pauperis. Lee has also filed a motion to stay


       This order and judgment is not binding precedent, except under the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.
proceedings. We deny a certificate of appealability, deny Lee’s request to

proceed on appeal in forma pauperis, deny his motion to stay proceedings, and

dismiss the appeal.

                                          I.

      Lee was charged in 1986 with burglary in the first degree, two counts of

rape in the second degree, three counts of forcible oral sodomy, and robbery with

a firearm. Lee was a juvenile when the crimes were committed and the trial court

certified him to stand trial as an adult. Lee then pled guilty to all counts. Lee

appealed his adult classification to the Oklahoma Court of Criminal Appeals

(OCCA), but the appeal was dismissed on Lee’s motion on April 20, 1987.

      On May 7, 1997, Lee filed a petition for appeal out of time with the

OCCA. The court declined jurisdiction because Lee had not been denied post-

conviction relief by the district court. Lee filed an application for post-

conviction relief, alleging (1) the trial court violated his Fifth Amendment right

against self-incrimination and Sixth Amendment right to counsel by basing its

findings on psychiatric evaluations and testimony, (2) the trial court erred in

certifying him as an adult, and (3) he was denied his right to appeal by the

dismissal of his direct appeal. On July 30, 1997, the state district court denied

post-conviction relief. On December 1, 1997, Lee filed a petition in error with

the OCCA, appealing that denial. The OCCA again declined jurisdiction because


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Lee’s notice of appeal was untimely.

      On January 15, 1998, Lee filed a 28 U.S.C. § 2254 motion in federal

district court, alleging (1) denial of Sixth Amendment right to counsel and Fifth

Amendment privilege against self incrimination, (2) denial of due process at the

juvenile certification proceeding, and (3) ineffective assistance of counsel in the

dismissal of his direct appeal. The magistrate recommended dismissing Lee’s

§ 2254 petition as untimely. The magistrate found that Lee’s conviction became

final on April 20, 1987, when the OCCA dismissed his direct appeal. Under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and this court’s

decision in United States v. Simmonds , 111 F.3d 737 (10th Cir. 1997), Lee had

until April 23, 1997, to file his § 2254 petition. Lee did not file his § 2254

petition until January 15, 1998. Lee objected to the magistrate’s report and

recommendation.

      On January 26, 1999, the district court adopted the magistrate’s findings

and recommendations, dismissed Lee’s § 2254 petition, and denied Lee a

certificate of appealability. On April 9, 1999, Lee filed a motion requesting that

the district court review the entire record. On June 25, 1999, the district court

denied Lee’s motion for review, again finding his § 2254 petition was untimely.

On July 9, 1999, Lee filed a notice of appeal. On October 14, 1999, the district

court denied Lee’s motion to proceed on appeal in forma pauperis. Lee failed to


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timely appeal the denial of his § 2254 petition, but did timely appeal the district

court’s denial of his motion to review the entire record. Our review is limited to

whether the district court abused its discretion in denying the motion to review

the entire record.    See White v. American Airlines, Inc.   , 915 F.2d 1414, 1425

(10th Cir. 1990).

                                            II.

       On appeal, Lee does not address the timeliness of his § 2254 petition, but

raises the issues of due process violations in the certification proceeding and the

state district court’s review of that proceeding. We find the district court did not

err in concluding Lee’s § 2254 petition was not timely filed. Under the 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). Lee’s conviction became final on April 20, 1987, when the

OCCA dismissed his direct appeal. Because his conviction became final before

the effective date of the AEDPA, Lee had until April 23, 1997, to file his federal

habeas petition.     Simmonds , 111 F.3d at 746. Lee filed his § 2254 petition with

the district court on January 15, 1998. This filing was untimely, and Lee has

failed to show he was excused from timely filing his petition.     See 28 U.S.C.

§ 2244(d)(1) (listing circumstances in which time for filing petition may be

extended).


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      Lee has filed a “Motion to Stay Proceedings to Allow Petitioner the

Opportunity to Exhaust Newly Discover[e]d State Procedures.” The motion is

not clear as to what state remedy Lee seeks to utilize. In light of the untimeliness

of Lee’s § 2254 petition, we deny the motion to stay proceedings.

                                         III.

      We DENY Lee a certificate of appealability, DENY his request to proceed

on appeal in forma pauperis, DENY his motion to stay the proceedings, and

DISMISS the appeal. The mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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