                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          SEP 13 1999

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 JAMES L. UPSHUR, JR.,

          Petitioner-Appellant,

 v.                                                    No. 99-1156
                                                   (D.C. No. 98-D-2437)
 ROBERT HICKOCK; ATTORNEY                               (Colorado)
 GENERAL OF THE STATE OF
 COLORADO,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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 cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      Mr. James L. Upshur, Jr., a pro se prisoner, filed a petition for habeas

corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as

time-barred under AEDPA and denied Mr. Upshur’s motion for a certificate of

appealability. He moves this court for a certificate of appealability. We deny his

motion and dismiss the appeal.

      Mr. Upshur is currently serving a sentence in state prison for racketeering,

theft and forgery. He filed his petition for habeas corpus on November 6, 1998,

and this proceeding is therefore governed by the provisions of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254. That

Act establishes a one-year limitation period for filing habeas petitions seeking

relief from state court convictions. The limitation period begins to run from the

time the judgment of conviction becomes final and is tolled for any period during

which an application for state post-conviction relief has been properly filed. See

28 U.S.C. § 2244(d)(2).

      In the instant case, Mr. Upshur’s conviction on direct appeal was affirmed

on January 25, 1996. The Colorado Supreme Court denied his petition for

certiorari on September 3, 1996. Under 28 U.S.C. § 2244(d)(1)(A) his conviction

became final on December 2, 1996, when the ninety-day period for seeking a writ

of certiorari from the United States Supreme Court expired. From that final date,

his time began to run until it was tolled on January 28, 1997, when he filed his


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Rule 35(b) motion for state post conviction relief. The AEDPA time clock was

suspended until the Rule 35(b) motion was dismissed without prejudice on

October 15, 1997. In a calculation that tolls the time from January 28, 1997 to

October 15, 1997, Mr. Upshur’s one-year time limitation from the date of final

judgment, December 2, 1996, expired on August 19, 1998. He filed his petition

for habeas corpus on November 6, 1998, two months after this deadline. On

appeal, Mr. Upshur asserts that time limitations ought not to apply to

constitutional claims that are meritorious. Congress has decided otherwise.

Because the AEDPA statute explicitly bars untimely habeas corpus claims such as

this one, Mr. Upshur may not file an action past the deadline no matter how

meritorious he believes his claims to be.

      Mr. Upshur has not “made a substantial showing of the denial of a

constitutional right” as required for the issuance of a certificate of appealability.

28 U.S.C. S 2253(c)(2). Accordingly, we DENY his motion for a certificate and

DISMISS the appeal.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge




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