                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 30 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    EDWIN THOMAS GRAVES,

                Petitioner-Appellant,

    v.                                                    No. 99-7013
                                                    (D.C. No. CV-97-512-S)
    BOBBY BOONE, Warden, Mack                             (E.D. Okla.)
    Alford Correctional Center; THE
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before ANDERSON , BARRETT , 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.




*
      This order and judgment is not binding precedent, except under the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.
       Petitioner-appellant Edwin Thomas Graves appeals the district court’s

denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. He also appeals

the district court’s denial of a certificate of appealability. The district court

determined that Mr. Graves’ petition was not timely. We affirm the district court

and deny a certificate of appealability.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

establishes a one-year limitations period in which prisoners must file their habeas

petitions. See 28 U.S.C. § 2244(d)(1). The limitations period triggers when the

prisoner’s direct appeal becomes final.    See Hoggro v. Boone , 150 F.3d 1223,

1225 (10th Cir. 1998). For prisoners whose convictions became final before

April 24, 1996--AEDPA’s effective date--the limitations period commences on

April 24, 1996 and expires one year later, on April 24, 1997.    See id. at 1225-26.

Time spent pursuing state post-conviction relief tolls the one-year grace period.

See 28 U.S.C. § 2244(d)(2);    Hoggro , 150 F.3d at 1226.

       Mr. Graves was convicted of first-degree murder in Oklahoma state court

on September 30, 1987, and sentenced to life imprisonment. The Oklahoma Court

of Criminal Appeals denied his direct appeal on September 3, 1992. On

August 7, 1997, the Oklahoma Court of Criminal Appeals affirmed the District

Court of Oklahoma County which denied Mr. Graves’ April 21, 1997 request for

post-conviction relief. Mr. Graves filed this petition for habeas relief in the


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Eastern District of Oklahoma on September 8, 1997--502 days after April 24,

1996. Out of those 502 days, Mr. Graves spent 108 days pursuing state

post-conviction relief. Subtracting 108 days from the total elapsed time of

502 days leaves 394 days, an amount in excess of the one-year grace period.

      Mr. Graves argues on appeal that: (1) the record establishes a denial of his

constitutional rights requiring a certificate of appealability; (2) the doctrine of

reasonable opportunity applies; (3) the limitations period runs while a petitioner

can seek certiorari review in the United States Supreme Court; (4) the limitations

period is an affirmative defense limiting the district court to respondents’

arguments; (5) the district court erred by not equitably tolling the limitations

period; (6) the limitations period does not run while Oklahoma’s appellate and

post-conviction procedures fail to provide a constitutional means of exhausting

state remedies for federal constitutional violations; and (7) the limitations period

does not run as to unconstitutional procedures in state court post-conviction

proceedings, and the district court must address federal constitutional claims

which do not arise in the first instance until state court post-conviction

proceedings are concluded.

      Mr. Graves’ arguments on appeal do not save his petition. The time during

which a petition for writ of certiorari is pending in the United States Supreme

Court as well as the time during which such a petition can be filed is not within


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the ambit of § 2244(d)(2) and is not excluded from the one-year limitations

period. See Rhine v. Boone , 182 F.3d 1153, 1156 (10th Cir. 1999),        petition for

cert. filed , (U.S. Oct. 4, 1999) (No. 99-6598). In addition, Mr. Graves has not

presented any compelling reason why the grace period should be equitably tolled.

See Irwin v. Department of Veterans Affairs        , 498 U.S. 89, 96 (1990) (describing

rare situations in which federal courts have permitted equitable tolling). Nor are

we swayed by his related argument that we should apply a reasonable opportunity

analysis rather than that set forth in   Hoggro and other of our decisions.

       Mr. Graves also argues that the district court erred by not strictly adhering

to respondents’ arguments pertaining to the limitations period. We see no

significance in the district court’s purported deviation. First, respondents did

raise the defense of limitations. Second, federal district courts are empowered in

habeas cases to consider petitions and dismiss them if “the petitioner is not

entitled to relief in the district court.” Rules Governing Section 2254 Cases in the

United States District Courts, 28 U.S.C. foll. § 2254 Rule 4;      see also Kiser v.

Johnson , 163 F.3d 326, 328 (5th Cir. 1999) (holding that Rule 4 “differentiates

habeas cases from other civil cases with respect to      sua sponte consideration of

affirmative defenses”).

       Mr. Graves’ remaining contentions essentially challenge Oklahoma’s

post-conviction procedures. Mr. Graves contends that AEDPA’s one-year


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limitations period never started to run because he was not afforded a full

opportunity to exhaust his federal constitutional claims. Mr Graves claims that

the Oklahoma state courts impeded him, within the meaning of § 2244(d)(1)(B),

by denying him the opportunity to present evidence in support of his ineffective

assistance of counsel claim. In addition, Mr. Graves contends that he was not

allowed to develop the necessary factual record under § 2244(d)(1)(D). We do

not find, on the record before us, that the § 2244(d)(1) limitations period “raises

serious constitutional questions and possibly renders the habeas remedy

inadequate and ineffective.”   Miller v. Marr , 141 F.3d 976, 978 (10th Cir.),

cert. denied , 119 S. Ct. 210 (1998). Mr. Graves’ challenges to Oklahoma’s

post-conviction procedures do not amount to federal constitutional claims in a

federal habeas action.   See Steele v. Young , 11 F.3d 1518, 1524 (10th Cir. 1993).

       Accordingly, we DENY Mr. Graves’ request for a certificate of

appealability and DISMISS the appeal.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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