UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVEN LESTER, 

Petitioner-Appellant,

v.  No. 02-7382 STATE OF SOUTH CAROLINA; CHARLES

M. CONDON, Attorney General of

the State of South Carolina,

Respondents-Appellees. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

C. Weston Houck, District Judge.

(CA-99-3122-4-12BF)

Submitted: October 31, 2002

Decided: February 7, 2003

Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.

Dismissed by unpublished per curiam opinion. 

COUNSEL

Steven Lester, Appellant Pro Se. Donald John Zelenka, Chief Deputy

Attorney General, Samuel Creighton Waters, OFFICE OF THE

ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South

Carolina, for Appellees. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Steven Lester seeks to appeal the district court’s order denying

relief on his petition filed under 28 U.S.C. § 2254 (2000). An appeal

may not be taken to this court in a habeas corpus proceeding unless

a circuit justice or judge issues a certificate of appealability. 28

U.S.C. § 2253(c)(1) (2000). When, as here, a district court dismisses

a § 2254 petition solely on procedural grounds, a certificate of

appealability will not issue unless the petitioner can demonstrate both

"(1) ‘that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right,’ and (2)

‘that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.’" Rose v. Lee, 252 F.3d 676,

684 (4th Cir.) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),

cert. denied, __ U.S. __, 122 S. Ct. 318 (2001). We have reviewed

the record and, for the reasons stated below, conclude that Lester has

not made the requisite showing. 

In March 1975, Lester pled guilty in South Carolina state court to

murder and armed robbery, for which he received consecutive fifteen

year prison terms on the armed robbery counts and life in prison on

the murder count. Lester did not file a direct appeal. His first state

application for post-conviction relief was denied in June 1983. On

July 5, 1995, Lester filed a second state application for postconviction relief, which was denied on June 9, 1997. His third application, filed in March 1998, was dismissed on March 22, 1999.

On September 23, 1999, Lester filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. Lester dated the petition August

10, 1999. The magistrate judge recommended granting Respondents’

motion for summary judgment on the grounds that the petition was

untimely filed, procedurally barred, and meritless. The district court

did not expressly adopt the magistrate judge’s recommendation, but

2 LESTER v. STATE OF SOUTH CAROLINA
concluded that Lester’s § 2254 petition was untimely and therefore

granted Respondents’ motion for summary judgment. 

Under this circuit’s local rules, this court "limit[s] its review to the

issues raised in the informal brief." 4th Cir. R. 34(b). The court

expressly warned Lester that it would not consider issues not specifically raised in his informal brief. Despite this warning, Lester failed

to challenge in his informal brief the district court’s conclusion that

his § 2254 petition was untimely, and instead argued the merits of his

petition. Therefore, he waived the issue of timeliness and cannot meet

the criteria for a certificate of appealability. 

Even if he had not waived the timeliness issue, we find that Lester’s habeas petition was time barred. Under 28 U.S.C. § 2244(d)(1)

(2000), a one-year limitations period applies to the filing of § 2254

petitions. The statutory period is tolled during the pendency of any

properly filed state collateral review proceedings. 28 U.S.C.

§ 2244(d)(2); Artuz v. Bennett, 531 U.S. 4, 8-9 (2000). Because Lester’s convictions became final before the enactment of the AntiTerrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, 110 Stat. 1214 (1996) ("AEDPA"), the one-year limitations

period commenced on April 24, 1996. Harris v. Hutchinson, 209 F.3d

325, 327-28 (4th Cir. 2000). 

At the time the limitations period began to run, Lester had an application for post-conviction relief pending in state court. That petition

was denied on June 9, 1997. Under the AEDPA, "the limitations

period is tolled from the time an application for state post-conviction

relief is initially filed until it is finally disposed of by the state courts,

including times between denials of claims and appeals." Spencer v.

Sutton, 239 F.3d 626, 629 (4th Cir. 2001) (citing Hernandez v. Caldwell, 225 F.3d 435, 438 (4th Cir. 2000)). This Court has stated that:

under § 2244(d)(2) the entire period of state post-conviction

proceedings, from initial filing to final disposition by the

highest state court (whether decision on the merits, denial of

certiorari, or expiration of the period of time to seek further

appellate review), is tolled from the limitations period for

federal habeas corpus petitioners who were already involved

in state post-conviction proceedings on April 24, 1996. 

LESTER v. STATE OF SOUTH CAROLINA 3
Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999) (emphasis added);

see also Carey v. Saffold, __ U.S. __, 122 S. Ct. 2134, 2136, 2138

(2002). Neither the Supreme Court nor this court has specifically

addressed the issue of whether the time for filing an appeal of the

denial of post-conviction relief is counted in the tolling period when

no notice of appeal is filed. In this case it makes no difference

because, even if the period is included, Lester’s § 2254 petition was

untimely.

As stated above, Lester’s second state post-conviction application

was pending when the AEDPA’s limitations period began running on

April 24, 1996. The state court denied the application on June 9,

1997, and, under South Carolina’s procedural rules, Lester had thirty

days to appeal. See S.C.R. Civ. P. 71.1(f); S.C. App. Ct. R. 203(b),

227(b). Therefore, if the appeal period is included in the tolling, Lester’s application for post-conviction relief was pending, and the

AEDPA’s statute of limitations did not begin to run, until July 9,

1997. Lester’s third state application for post-conviction relief was

filed on March 27, 1998, and dismissed on March 22, 1999. Thus, the

AEDPA limitations period also was tolled beginning on March 27,

1998. The period was tolled, at the latest, until April 21, 1999, the

date the time expired for Lester to appeal from the March 22, 1999,

order dismissing his third application. 

Counting the 260 days between Lester’s second and third applications for post-conviction relief, and resuming the running of the limitations period on April 22, 1999, Lester had 105 days, or until August

4, 1999, to file his federal habeas petition. However, Lester did not

file his § 2254 petition until, at the earliest, August 10, 1999.*

Because Lester’s § 2254 petition was untimely, Lester cannot meet

the criteria for obtaining a certificate of appealability. 

*We note that Lester’s third state application for post-conviction relief

was dated March 24, 1998, although it was not filed until March 27,

1998. Even if we considered the application to be filed as of March 24,

1998, the additional three days of tolling would have given Lester until

Monday, August 9, 1999, at the latest, to file his § 2254 petition. Thus,

his petition still would be untimely. 

4 LESTER v. STATE OF SOUTH CAROLINA
As part of its analysis, the district court discussed Rule 9(b) of the

Rules Governing § 2254 Cases. This rule addresses second or successive § 2254 petitions. The district court appears to have discussed this

rule in relation to Lester’s multiple state habeas corpus petitions. We

note that Rule 9(b) is inapplicable to Lester’s case because the rule

concerns second or successive federal § 2254 petitions, rather than

state post-conviction petitions, and this was Lester’s first § 2254 petition. In any event, Lester waived this issue by failing to raise it in his

informal brief and, as discussed above, Lester’s petition was

untimely. 

For these reasons, we deny a certificate of appealability and dismiss Lester’s appeal. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

DISMISSED

LESTER v. STATE OF SOUTH CAROLINA 5