                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                              APR 6 1999
                        FOR THE TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                  Clerk

JIMMY DON RIGGS,

           Petitioner-Appellant,

v.                                              No. 98-2041
                                      (D.C. No. CIV-97-1001-BB/LCS)
CHARLES CRANDELL, Warden,                        (D. N.M.)
Central Arizona Detention Center;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

           Respondents-Appellees.


JERRY LEON ELLIS, JR.,

           Petitioner-Appellant,

v.                                             No. 98-6045
                                        (D.C. No. CIV-97-1117-T)
RON WARD,                                     (W.D. Okla.)

           Respondent Appellee.


CEDRICK L. JACOBS,

           Petitioner-Appellant,

v.                                             No. 98-6078
                                         (D.C. No. CIV-97-1327)
TOM C. MARTIN, Warden,                        (W.D. Okla.)

           Respondent-Appellee.
THOMAS HALVERSON,

         Petitioner-Appellant,
                                               No. 98-6073
v.                                        (D.C. No. 97-CV-1449)
                                               (W.D. Okla.)
OKLAHOMA DEPARTMENT
OF CORRECTIONS,

         Respondent-Appellee.


JOHN WARREN MUNN,

         Petitioner-Appellant,
                                               No. 98-6057
v.                                        (D.C. No. 97-CV-1312)
                                               (W.D. Okla.)
H.N. SCOTT; ATTORNEY
GENERAL OF THE STATE
OF OKLAHOMA,

         Respondents-Appellees.


KEVIN K. OGDEN,

         Petitioner-Appellant,
                                               No. 98-2094
v.                                      (D.C. No. CIV-97-1021-MV)
                                                 (D. N.M.)
RON LYTLE, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEW MEXICO,

         Respondents-Appellees.




                                  -2-
ALVIN LYNN ALEXANDER,

                 Petitioner-Appellant,                      No. 98-6221
                                                        (D.C. No. 98-CV-99)
v.                                                          (W.D. Okla.)

H.N. SCOTT,

                 Respondent-Appellee.



                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.



       After examining the briefs and appellate records, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.     See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       These companioned appeals all share a common issue: whether the

habeas corpus petitions filed pursuant to 28 U.S.C. § 2254 are time-barred

in light of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),


*
      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.

                                           -3-
Pub. L. No. 104-132, § 101, 110 Stat. 1321 (codified at 28 U.S.C.A.

§§ 2244(d)(1)-(d)(2) (West Supp. 1998)). AEDPA amended § 2254, adding

a one-year statute of limitations for filing habeas corpus petitions. The

limitations period generally begins to run from the date on which a prisoner’s

direct appeal from his conviction became final.   See 28 U.S.C. § 2244(d)(1).

In light of the retroactivity problems that might arise for prisoners whose

convictions became final before the effective date of AEDPA (April 24, 1996),

this court, like the other circuits, created a grace-period. We held that for

petitioners whose convictions became final before the effective date of AEDPA,

the one-year limitations period does not begin to run until April 24, 1996,

see Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998), and those petitions

must be filed before April 24, 1997, see United States v. Simmonds , 111 F.3d 737,

746 (10th Cir. 1997) (§ 2255), to be within the one-year limitations period.

      We have also held that the tolling provision set forth in § 2244(d)(2),

which provides that the limitations period is tolled during the time that a

properly filed application for state post-conviction relief is pending, applies to

the judicially-created grace period for prisoners whose convictions became final

before the effective date of AEDPA.     Hoggro, 150 F.3d at 1226. In each of these

appeals, the district court entered its order dismissing the petitions as time-barred

before we resolved the issue of the applicability of the tolling provision in the


                                           -4-
grace-period in Hoggro. We will discuss the factual scenario and analyze each

appeal separately in light of our decision in         Hoggro.


                                             98-2041

       Contrary to the magistrate judge’s finding in this case, petitioner submitted

his § 2254 petition to prison officials for mailing on July 9, 1997, and, therefore,

that is the filing date.   1
                               See Hoggro , 150 F.3d at 1226 n.3 (applying    Houston v.

Lack , 487 U.S. 266, 270 (1988), to habeas petition). Appellees concede that

July 9, 1997 is the date on which the § 2254 petition was filed. Appellees’ Supp.

Br. at 1. Contrary to appellees’ representation in their supplemental brief, neither

the district court nor the magistrate judge applied the tolling provision in this

case. Therefore, we must remand this case to the district court in light of        Hoggro ,

with specific instructions that it apply the tolling provision in determining

whether the § 2254 petition is time-barred. The district court is instructed to

recognize that the petition was filed on July 9, 1997. Further, the district court

must address petitioner’s argument that the tolling period should begin on

April 14, 1997, the date he delivered his state post-conviction petition for filing,

rather than April 21, 1997, the date the petition was received by the state court.



1
      The magistrate judge referred to the § 2254 petition filing date as July 28,
1997, the date the petition was file-stamped by the Clerk of the District Court.
This was error.

                                                -5-
Finally, the district court should consider the effect, if any, of petitioner’s

contention that he did not receive the New Mexico Supreme Court’s denial of his

petition for writ of certiorari, which was entered by the court on July 3, 1997,

until July 7, 1997. All of these matters must be carefully considered because the

timeliness of the petition is within a matter of days, and petitioner’s success on

any one of these arguments could make the difference in his § 2254 petition

being timely or time-barred.

      The application of a certificate of appealablity is   GRANTED , and the case

is REMANDED for further proceedings consistent with this order and judgment.


                                         98-6045

      In light of Hoggro , we must reverse the district court’s conclusion that the

tolling provision did not apply to the judicially created grace period. Petitioner’s

state post-conviction proceedings began on March 28, 1997, and the denial of

state post-conviction relief was affirmed on June 17, 1997. Thus, the limitations

period for the filing of the § 2254 petition was tolled for 82 days during the

pendancy of the state post-conviction proceedings. Accordingly, the date by

which the § 2254 petition must have been filed was July 14, 1997. Petitioner

filed his § 2254 petition on July 8, 1997. The petition was timely filed after

application of the tolling provision.



                                            -6-
      This court granted a certificate of appealability on April 6, 1998.

We REVERSE the district court’s dismissal of the petition as time-barred,

and we REMAND the case to the district court for further proceedings.


                                        98-6078

      In light of our holding in   Hoggro , we must reverse the district court’s

conclusion that the tolling provision is not applicable to the judicially created

grace period. Petitioner filed his state post-conviction petition on March 28,

1997, and the Oklahoma Court of Criminal Appeals affirmed the denial of

post-conviction relief on August 6, 1997. Thus, the limitations period was tolled

for the 132 days that the post-conviction proceedings were pending in state court,

resulting in a filing deadline of September 3, 1997. Petitioner filed his § 2254

petition on August 14, 1997, within the limitations period after application of

the tolling provision. Appellee argues, however, that not all the time spent in

state court can be counted toward tolling the limitations period because the

post-conviction application was not “properly filed.”    See 28 U.S.C. § 2244(d)(2);

Hoggro , 150 F.3d at 1226 n.4. The district court did not reach this argument

because it held that the tolling provision did not apply.

      This court granted a certificate of appealability on April 6, 1998.

We REVERSE the district court’s dismissal of the § 2254 petition as time-barred.

We REMAND this case to the district court in light of       Hoggro and for

                                           -7-
consideration of appellee’s argument regarding the amount of time, if any, that

should be tolled. If the district court finds that the state application was properly

filed, the § 2254 petition was timely, and the district court is instructed to proceed

accordingly.


                                          98-6073

       In this case the district court concluded that the tolling provision does not

apply to the judicially created grace period. In light of   Hoggro , this conclusion

was error. However, even applying the tolling provision in this case does not

save the § 2254 petition from being time-barred. Petitioner filed his state

post-conviction proceeding on March 17, 1997, and the Oklahoma Court of

Criminal Appeals affirmed the denial of relief on July 30, 1997, resulting in

a total of 136 days that the limitations period was tolled. Adding these days to

the April 23, 1997 deadline, petitioner’s § 2254 petition should have been filed

on or before September 7, 1997. Since September 7th fell on a Sunday, petitioner

had until Monday, September 8, 1997. The § 2254 petition was filed on

September 9, 1997, one day after the expiration of the limitations period.

Therefore, the petition was time-barred.

       This court granted a certificate of appealability on April 6, 1998. Even

though the district court erred in concluding that the tolling provision did not

apply to the judicially created grace period, we can affirm on any basis supported

                                             -8-
by the record, see United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir.

1994). Because the petition was untimely even after application of the tolling

provision, we AFFIRM the district court’s dismissal of the petition as

time-barred.


                                          98-6057

       In light of our holding in   Hoggro , the district court’s conclusion that the

statutory tolling provision does not apply to the judicially created grace period

was error. We note that the magistrate judge made specific findings regarding

the dates relevant to applying the tolling provision.    See Findings and

Recommendation of Magistrate Judge at 4-5. The district court adopted the

magistrate judge’s findings and recommendation in their entirety,      see District

Court Order at 2, but it specifically held that the tolling provision did not apply to

the grace period.

       We GRANT the application for a certificate of appealability.

We REVERSE the district court’s dismissal of the petition as time-barred, and

we REMAND this case to the district court for application of the tolling

provision. We note that there appears to be some question regarding the amount

of time that petitioner had a “properly filed” post-conviction application pending

in state court, and we are unable to reconcile the magistrate judge’s time

calculations. The district court must make findings on remand regarding the

                                             -9-
amount of time that should be tolled, and it should add that time onto the end of

the judicially created grace period deadline of April 23, 1997.


                                        98-2094

      Even though the district court’s order dismissing the § 2254 petition as

time-barred was entered before our decision in    Hoggro , the district court adopted

the magistrate judge’s recommendation that the limitations period be tolled while

petitioner’s state court post-conviction application was pending. The state court

post-conviction proceedings in this case were pending for 80 days. Adding the 80

days to the end of the judicially created grace period gave petitioner until July 14,

1997 2 to file his petition. Because the § 2254 petition was filed on August 4,

1997, it was untimely.

      We GRANT the application for a certificate of appealability, and we

AFFIRM the district court’s dismissal of the § 2254 petition as untimely.


                                        98-6221

      In light of our holding in   Hoggro , the district court’s finding that the

tolling provision did not apply during the judicially created grace period was

error. Even applying the tolling provision, however, petitioner’s § 2254 petition



2
    Because the deadline fell on a Saturday (July 12, 1997), petitioner had until
Monday, July 14, 1997, to file the petition.

                                          -10-
was untimely. Petitioner’s state habeas petition was pending in state court from

April 8, 1997, until July 17, 1997, for a total of 101 days. Tolling the limitations

period for 101 days resulted in a filing deadline of August 4, 1997.   3
                                                                           The § 2254

petition was filed on January 21, 1998, well outside the limitations period.

       We GRANT the application for a certificate of appealability, and, because

we can affirm on any basis supported by the record,       see Sandoval , 29 F.3d at 542

n.6, we AFFIRM the district court’s dismissal of the § 2254 petition as untimely.

Because the fees in this appeal have been paid, we       DENY the application to

proceed without prepayment of costs or fees as moot.



                                                        Entered for the Court



                                                        Stephen H. Anderson
                                                        Circuit Judge




3
    Because the deadline fell on a Sunday (August 3, 1997), petitioner had until
Monday, August 4, 1997 to file the petition.

                                           -11-
