                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           JUN 21 1999
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 LEONARD HOWARD MIKES,
             Petitioner - Appellant,                      No. 99-6079
 v.                                               (D.C. No. CIV-98-1055-T)
 STATE OF OKLAHOMA; R. D.                                (W.D. Okla.)
 ANDREWS; and DENNIS
 CUNNINGHAM,
             Respondents - Appellees.


                           ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.




      After examining Petitioner-Appellant Leonard Howard Mikes’ briefs and

the 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.

      Petitioner, a state prisoner appearing pro se, appeals the district court’s


      *
       This order and judgment is not binding precedent, except under the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.
denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §

2254.

        As a preliminary matter, we must decide whether this court has jurisdiction

to hear Petitioner’s appeal. The district court entered its Order Nunc Pro Tunc

denying § 2254 relief on January 14, 1999. Pursuant to Federal Rules of

Appellate Procedure 4(a)(1)(A), 26(a)(3), and 26(a)(4), Petitioner’s notice of

appeal was due on February 16, 1999, the Tuesday after a legal holiday

(Presidents’ Day). Petitioner’s notice of appeal was docketed as filed on

February 17, 1999. However, in response to a jurisdictional show cause order

issued by this court, Petitioner submitted a return receipt from the post office

indicating that he mailed an item to the district court on January 25, 1999. He

also submitted a statement by a prison official indicating that he took Petitioner’s

paperwork to the mailroom on January 22, 1999. Therefore, pursuant to Rule 4(c)

of the Federal Rules of Appellate Procedure, we hold that Petitioner’s notice of

appeal was timely. See Fed. R. App. P. 4(c) (“If an inmate confined to an

institution files a notice of appeal in either a civil or criminal case, the notice is

timely if it is deposited in the institution’s internal mail system on or before the

last day of filing.”); Houston v. Lack, 487 U.S. 266, 276 (1988) (holding that pro

se prisoner’s notice of appeal is deemed filed when it is delivered to prison

officials for forwarding to the district court).


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      To determine whether Petitioner is entitled to a certificate of appealability,

we now examine whether Petitioner has made a substantial showing of the denial

of a constitutional right. See 28 U.S.C. § 2253(c)(2). On July 31, 1998,

Petitioner filed a § 2254 petition challenging his 1988 conviction of forcible oral

sodomy after former conviction of a felony for which he received a sentence of

200 years’ imprisonment. Concluding that the petition was time-barred and that

Petitioner had alleged no basis for tolling, equitable or otherwise, the magistrate

judge recommended dismissal. After considering Petitioner’s objections and

reviewing the matter de novo, the district court found that the petition was time-

barred and entered an order of dismissal. As noted above, Petitioner subsequently

filed a notice of appeal. The district court construed the notice of appeal as a

request for a certificate of appealability pursuant to 28 U.S.C. § 2253 and denied

it.

      This court has reviewed Petitioner’s briefs, the magistrate judge’s report

and recommendation, the district court’s orders, and the entire record on appeal.

Because Petitioner’s § 2254 petition was due on April 23, 1997, see 28 U.S.C. §

2244(d)(1), and because no basis exists for tolling that one-year limitation period

in this case, see Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1988), the

district court properly determined that his petition is time-barred. We conclude

that Petitioner has raised no arguments which require further proceedings, are


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debatable among jurists, or are subject to a different resolution on appeal. See

Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). Accordingly, Petitioner has not

made a substantial showing of a denial of a constitutional right. See 28 U.S.C. §

2253(c)(2). We therefore DENY Petitioner’s request for a certificate of

appealability for substantially the reasons set out in the report and

recommendation of the magistrate judge, and we DISMISS this appeal. The

request to proceed in forma pauperis is also DENIED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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