*

 This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 17 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

OMAR DENTON WHITE,

Petitioner-Appellant,

 v.

RON WARD,

Respondent-Appellee.

No. 98-6289

(D.C. No. CIV-98-159-R)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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. 34.1.9. Therefore, the

case is ordered submitted without oral argument.

Omar Denton White, an Oklahoma state prisoner appearing pro se, seeks a

certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C.
1

 White alleges he filed a motion “for an appeal out of time” in state

district court on October 17, 1995, which was ultimately treated as an application

for post-conviction relief. Although the record on appeal does not contain a copy

of the motion or the state court’s order or docket sheet acknowledging the motion,

(continued...)

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§ 2254 habeas petition. We deny a certificate of appealability and dismiss the

appeal.

In 1985, White was convicted of second-degree burglary after conviction of

two or more felonies and was sentenced to eighty-five years’ imprisonment. His

conviction and sentence were affirmed on direct appeal in White v. State, 762

P.2d 967 (Okla. Crim. App. 1988). Although no documentation appears in the

record, White alleges he sought and was denied post-conviction relief in state

district court in 1989, but did not appeal because he was denied access to a law

library. He filed a second request for post-conviction relief in state district court

on July 9, 1991, which was denied on September 19, 1991, and the denial was

affirmed on appeal on February 19, 1992.

White filed a habeas petition in federal district court on April 12, 1995. 

The court dismissed the petition without prejudice after concluding White had not

exhausted state court remedies when he failed to appeal dismissal of his first

petition for post-conviction relief. In an apparent attempt to exhaust state court

remedies, White filed a third request for post-conviction relief in state court on

September 13, 1996, 1 which was denied on December 16, 1996. White did not
1

(...continued)

for purposes of this appeal we assume White’s allegations are true.

-3-

perfect an appeal from that denial until January 21, 1997, and the Oklahoma

Court of Criminal Appeals declined to exercise jurisdiction over the appeal. 

White’s objection and request for reconsideration were denied.

White filed the instant habeas petition on January 30, 1998. Respondent

moved to dismiss on statute of limitations grounds. The magistrate judge

recommended dismissal because the petition was not filed within the one-year

statute of limitations set forth in 28 U.S.C. § 2244(d). White filed objections, but

the district court adopted the magistrate’s report and dismissed the petition as

untimely.

To obtain a certificate of appealability, White must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

standard is met by a showing that the issues raised “are debatable among jurists,

or that a court could resolve the issues differently, or that the questions deserve

further proceedings.” United States v. Sistrunk , 111 F.3d 91 (10th Cir. 1997).

Congress amended “the long-standing prior practice in habeas corpus

litigation that gave a prisoner virtually unlimited amounts of time to file a habeas

petition in federal court,” on April 24, 1996, and “established a one-year period of

limitations for habeas petitions.” Hoggro v. Boone , 150 F.3d 1223, 1224 (10th
-4-

Cir. 1998). The one-year period generally begins to run from “the date on which

the judgment became final by the conclusion of direct review or the expiration of

the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). For prisoners

whose convictions became final prior to April 24, 1996, the new limitation period

could have eliminated entirely an opportunity to file a federal habeas petition. 

Recognizing this problem, this court has held “that for prisoners whose

convictions became final before April 24, 1996, the one-year statute of limitations

does not begin to run until April 24, 1996.” Hoggro , 150 F.3d at 1225; United

States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997).

The one-year limitation period can be tolled by ongoing post-conviction

litigation in state court. See Hoggro , 150 F.3d at 1226. In particular, 28 U.S.C. §

2244(d)(2) provides “[t]he time during which a properly filed application for

State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward” the one-year limitation

period.

Applying these principles, we agree that White’s federal habeas petition

was untimely and was therefore barred by § 2244(d). Because White’s state

conviction became final well prior to Congress’ implementation of the new

limitation period, his one-year period for filing a federal habeas petition began

running on April 24, 1996. It is uncontroverted that White filed a request for
2

 If there were no ongoing post-conviction proceedings in state court

between April 24, 1996, and September 13, 1996, the one-year limitation period

would have expired even sooner.

-5-

post-conviction relief in state court on September 13, 1996, and the running of the

one-year filing period was tolled from that point until the request was denied on

December 16, 1996. Although White appealed the denial, his appeal was

untimely and was not “properly filed” for purposes of the tolling statute. See

Hoggro , 150 F.3d at 1226 n.4 (“Section 2244(d)(2) requires a court to subtract

time only for the period when the petitioner’s ‘properly filed’ post-conviction

application is being pursued.”) Accordingly, the one-year limitation period

expired on December 16, 1997. 2 White’s federal habeas petition was filed on

January 30, 1998, well outside the one-year limit. Although White argued he was

entitled to have the limitation period equitably tolled, we find nothing in the

record to support his argument. We agree with the district court that the record

“reveals a consistent history of lack of diligence on [White’s] part and that

[White’s] failure to timely refile his petition . . . was due to his own lack of

diligence.” District Court Order at 6.

White’s application for a certificate of appealability is DENIED and the
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appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge