* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel.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 ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 27 2002 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILL E. TUCKER, JR., Petitioner - Appellant,

v. L. E. BRUCE; ATTORNEY GENERAL OF KANSAS, Respondents - Appellees. No. 02-3061 D.C. No. 01-CV-3109 (D. Kansas)



### ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

Bill E. Tucker was convicted in 1975 of three count s of unlawful possession of a firearm after a felony conviction. He did not file a direct appeal. In May 1997, he filed a state post-conviction actio n, seeking reversal of these-2-

three convictions on the basis of the intervening r eversal of an armed robbery conviction, and challenging his sentencing enhancem ent under the Habitual Criminal Act. The state district court denied reli ef, the state appeals court affirmed, and the state supreme court denied Mr. Tu cker’s petition for review. Mr. Tucker then filed two § 2254 petitions in feder al district court. These actions were consolidated and subsequently denied as untime ly under AEDPA. Mr. Tucker filed a motion for reconsideration or, in th e alternative, a motion to proceed in forma pauperison appeal. The district court denied reconsiderat ion and granted the motion to proceed in forma pauperis . For the reasons set out below, we dismiss the appeal. Because Mr. Tucker’s convictions came before AEDPA, he had a one year grace period, from April 24, 1996 to April 24 1997, in which to file any petition for relief. This time period is tolled during the pendency of any “properly filed application for state post-conviction or other coll ateral review.” 28 U.S.C. 2254(d)(2). However, Mr. Tucker had no application s for review of the firearm convictions pending during that one year period, an d did not file for relief from the firearm possession convictions until May 26, 19 97. It was only the convictions for armed aggravated robbery that were the subject of pending motions during the one year grace period. Because he did not challenge the firearm possession convictions until after April 24 , 1997, the district court was-3-

correct in dismissing the matter as time-barred. When a habeas petitioner seeks to initiate an appea l of the dismissal of a habeas petition after April 24, 1996, the right to appeal is governed by the certificate of appealability requirements in 28 U.S .C. § 2253(c). See Slack v. McDaniel, 529 U.S. 473, 478 (2000). When the district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, a certificate of appealability should issue if the prisoner shows that “jurists of reason would find it debatable whether the petit ion states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its proce dural ruling.” Id. For the reasons set forth above, Mr. Tucker has not shown that the district court’s procedural ruling raises a debatable question. Accordingly, we DENYMr. Tucker’s application for a certificate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour Circuit Judge