                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 15 1999
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 HOWARD GLAZE,

          Petitioner - Appellant,
                                                           No. 98-6403
 v.
                                                     (D.C. No. 98-CV-272)
                                                  (Western District of Oklahoma)
 STEVE HARGETT,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Howard Glaze, an inmate within the Oklahoma State prison system, appeals

the district court’s denial of his petition for habeas relief. We conclude that

Glaze’s petition is time barred and dismiss.

      Glaze filed his habeas petition pursuant to 28 U.S.C. § 2254. In reviewing

a denial of a habeas petition, we examine the district court’s factual findings for




      *
        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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
clear error and its legal conclusions de novo. See Wildermuth v. Furlong, 147

F.3d 1234, 1236 (10th Cir. 1999).

      The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

which took effect on April 24, 1996, provides that “[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). A prisoner

whose conviction became final prior to the effective date of AEDPA has a grace

period of one year from April 24, 1996, to file a petition for habeas relief. See

United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Moreover, “[t]he

time during which a properly filed application for post-conviction. . . review. . . is

pending shall not be counted toward any period of limitation.” 28 U.S.C. §

2244(d)(2).

      We agree with the district court’s determination that Glaze had until

December 11, 1997, to file his habeas petition. Because Glaze did not file his

petition until February 28, 1998, it is untimely. We reject Glaze’s claim that he is

entitled to an additional tolling period of ninety days to account for the period

during which he could have sought review of the state court’s denial of his

petition for post-conviction relief by the United States Supreme Court. See Sup.

Ct. R. 13 (indicating that a petition for a writ of certiorari is timely when it is

filed within ninety days following the entry of judgment). We agree with the


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district court’s conclusion that the tolling period under § 2244(d)(2) does not

apply to the time during which a petitioner could seek Supreme Court review of

denial of post-conviction relief. See Hoggro v. Boone, 150 F.3d 1223, 1226 (10th

Cir. 1998) (noting that the time period to be tolled under § 2244(d)(2) is the time

“spent in state court”); see also Harris v. Champion, No. 98-6318, 1999 WL

84476, *1 (10th Cir. Feb. 22, 1999) (“[O]nce the Oklahoma Court of Criminal

Appeals affirmed the denial of [the] application [for post-conviction relief],. . .

the one-year limitations period once again began to run.”); Thompson v.

Simmons, No. 98-3270, 1999 WL 339697, *3 (10th Cir. May 31, 1999) (“[O]nce

the Kansas Supreme Court denied his state habeas petition. . . the clock began to

run on [the petitioner’s] one-year federal habeas time limitation period.”). 1

      Because Glaze sought habeas relief after the expiration of the applicable

limitations period, we DISMISS this petition. We further conclude that Glaze

has not made a substantial showing of the denial of a constitutional right and




      1
         We further reject Petitioner’s assertion that AEDPA does not apply to him
because his conviction preceded its enactment. See Simmonds, 111 F.3d at 746; Hoggro,
150 F.3d at 1225-26 (both applying AEDPA to petitioners whose convictions preceded
AEDPA’s enactment). Moreover, we reject Glaze’s assertion that because he committed
the underlying offenses prior to AEDPA’s enactment, application of AEDPA to his
petition violates the Ex Post Facto Clause. The Ex Post Facto Clause applies when a law
retrospectively alters the definition of criminal conduct or increases the punishment for
the crime. See Lynce v. Mathis, 519 U.S. 433, 441 (1997). Application of AEDPA to
Glaze’s petition creates neither of these problems.

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DENY a certificate of appealability. See 28 U.S.C. § 2253(c)(2). Finally, we

DENY leave to proceed in forma pauperis.

      The mandate shall issue forthwith.

                                     ENTERED FOR THE COURT



                                     Carlos F. Lucero
                                     Circuit Judge




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