* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th erefore, 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 districtcourt’s dismissal of his 28 U.S.C.1 White alleges he filed a motion “for an appeal ou t of time” in state

district court on October 17, 1995, which was ultim ately treated as an application for post-conviction relief. Although the record onappeal does not contain a copy of the motion or the state court’s order or docket sheet acknowledging the motion, (continued...) -2- § 2254 habeas petition. We deny a certificate of appealability and dismiss the appeal. In 1985, White was convicted of second-degree burgl ary after conviction of two or more felonies and was sentenced to eighty-fi ve years’ imprisonment. His conviction and sentence were affirmed on direct app eal in White v. State , 762 P.2d 967 (Okla. Crim. App. 1988). Although no docu mentation 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-convic tion 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 c ourt on April 12, 1995. The court dismissed the petition without prejudice after concluding White had not exhausted state court remedies when he failed to ap peal 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-conv iction relief in state court on September 13, 1996, 1 which was denied on December 16, 1996. White did not1 (...continued)

for purposes of this appeal we assume White’s alleg ations are true. -3- perfect an appeal from that denial until January 21 , 1997, and the Oklahoma Court of Criminal Appeals declined to exercise juri sdiction over the appeal. White’s objection and request for reconsideration w ere 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. § 224 4(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 mus t 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 differentl y, 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 t o run from “the date on which the judgment became final by the conclusion of dire ct review or the expiration of the time for seeking such review.” 28 U.S.C. § 224 4(d)(1)(A). For prisoners whose convictions became final prior to April 24, 1 996, the new limitation period could have eliminated entirely an opportunity to fi le a federal habeas petition. Recognizing this problem, this court has held “thatfor 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 ong oing 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 prop erly filed application for State post-conviction or other collateral review wi th respect to the pertinent judgment or claim is pending shall not be counted t oward” the one-year limitation period. Applying these principles, we agree that White’s fe deral habeas petition was untimely and was therefore barred by § 2244(d). Because White’s state conviction became final well prior to Congress’ imp lementation of the new limitation period, his one-year period for filing afederal habeas petition began running on April 24, 1996. It is uncontroverted th at White filed a request for2 If there were no ongoing post-conviction proceedi ngs 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 u ntil the request was denied on December 16, 1996. Although White appealed the den ial, 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) require s a court to subtract time only for the period when the petitioner’s ‘pro perly filed’ post-conviction application is being pursued.”) Accordingly, the on e-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 to lled, 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 appealabil ity is DENIED and the-6-

appeal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge