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

### APR 6 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
JIMMY DON RIGGS,

Petitioner-Appellant,

v. CHARLES CRANDELL, Warden, Central Arizona Detention Center; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees.
JERRY LEON ELLIS, JR.,

Petitioner-Appellant,

v. RON WARD,

Respondent Appellee.
CEDRICK L. JACOBS,

Petitioner-Appellant,

v. TOM C. MARTIN, Warden,

Respondent-Appellee. No. 98-2041 (D.C. No. CIV-97-1001-BB/LCS)

(D. N.M.)

No. 98-6045 (D.C. No. CIV-97-1117-T) (W.D. Okla.)

No. 98-6078 (D.C. No. CIV-97-1327) (W.D. Okla.)-2-

THOMAS HALVERSON,

Petitioner-Appellant,

v. OKLAHOMA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.
JOHN WARREN MUNN,

Petitioner-Appellant,

v. H.N. SCOTT; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.
KEVIN K. OGDEN,

Petitioner-Appellant,

v. RON LYTLE, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 98-6073 (D.C. No. 97-CV-1449) (W.D. Okla.)

No. 98-6057 (D.C. No. 97-CV-1312) (W.D. Okla.)

No. 98-2094 (D.C. No. CIV-97-1021-MV)

(D. N.M.)* This order and judgment is not binding precedent, e xcept under the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. -3- ALVIN LYNN ALEXANDER,

Petitioner-Appellant,

v. H.N. SCOTT,

Respondent-Appellee. No. 98-6221 (D.C. No. 98-CV-99) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate records, this panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he cases are therefore ordered submitted without oral argument. These companioned appeals all share a common issue: whether the habeas corpus petitions filed pursuant to 28 U.S.C. § 2254 are time-barred in light of the Antiterrorism and Effective Death P enalty Act of 1996 (AEDPA),-4-

Pub. L. No. 104-132, § 101, 110 Stat. 1321 (codifie d at 28 U.S.C.A. §§ 2244(d)(1)-(d)(2) (West Supp. 1998)). AEDPA ame nded § 2254, adding a one-year statute of limitations for filing habeas corpus petitions. The limitations period generally begins to run from the date on which a prisoner’s direct appeal from his conviction became final. See 28 U.S.C. § 2244(d)(1). In light of the retroactivity problems that might arise for prisoners whose convictions became final before the effective date of AEDPA (April 24, 1996), this court, like the other circuits, created a grac e-period. We held that for petitioners whose convictions became final before the effective date of AEDPA, the one-year limitations period does not begin to run until April 24, 1996, see Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998), and those pe titions must be filed before April 24, 1997, see United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997) (§ 2255), to be within the one -year limitations period. We have also held that the tolling provision set fo rth in § 2244(d)(2), which provides that the limitations period is tolle d during the time that a properly filed application for state post-convictio n relief is pending, applies to the judicially-created grace period for prisoners w hose convictions became final before the effective date of AEDPA. Hoggro, 150 F.3d at 1226. In each of these appeals, the district court entered its order dismi ssing the petitions as time-barred before we resolved the issue of the applicability o f the tolling provision in the1 The magistrate judge referred to the § 2254 petitio n filing date as July 28,

1997, the date the petition was file-stamped by the Clerk of the District Court. This was error. -5- grace-period in Hoggro. We will discuss the factual scenario and analyze each appeal separately in light of our decision in Hoggro.
98-2041 Contrary to the magistrate judge’s finding in this case, petitioner submitted his § 2254 petition to prison officials for mailing on July 9, 1997, and, therefore, that is the filing date. 1 See Hoggro , 150 F.3d at 1226 n.3 (applying Houston v. Lack , 487 U.S. 266, 270 (1988), to habeas petition). Appellees concede that July 9, 1997 is the date on which the § 2254 petiti on was filed. Appellees’ Supp. Br. at 1. Contrary to appellees’ representation intheir supplemental brief, neither the district court nor the magistrate judge appliedthe tolling provision in this case. Therefore, we must remand this case to the district court in light of Hoggro , with specific instructions that it apply the tollin g provision in determining whether the § 2254 petition is time-barred. The di strict court is instructed to recognize that the petition was filed on July 9, 19 97. Further, the district court must address petitioner’s argument that the tolling period should begin on April 14, 1997, the date he delivered his state pos t-conviction petition for filing, rather than April 21, 1997, the date the petition w as received by the state court.-6-

Finally, the district court should consider the eff ect, if any, of petitioner’s contention that he did not receive the New Mexico S upreme Court’s denial of his petition for writ of certiorari, which was entered by the court on July 3, 1997, until July 7, 1997. All of these matters must be c arefully considered because the timeliness of the petition is within a matter of days, and petitioner’s success on any one of these arguments could make the differenc e in his § 2254 petition being timely or time-barred. The application of a certificate of appealablity is GRANTED , and the case is REMANDED for further proceedings consistent with this order and judgment.
98-6045 In light of Hoggro , we must reverse the district court’s conclusion that the tolling provision did not apply to the judicially c reated grace period. Petitioner’s state post-conviction proceedings began on March 28 , 1997, and the denial of state post-conviction relief was affirmed on June 1 7, 1997. Thus, the limitations period for the filing of the § 2254 petition was to lled for 82 days during the pendancy of the state post-conviction proceedings. Accordingly, the date by which the § 2254 petition must have been filed was July 14, 1997. Petitioner filed his § 2254 petition on July 8, 1997. The pet ition was timely filed after application of the tolling provision.-7-

This court granted a certificate of appealability o n April 6, 1998. We REVERSE the district court’s dismissal of the petition as time-barred, and we REMAND the case to the district court for further proceed ings.
98-6078 In light of our holding in Hoggro , we must reverse the district court’s conclusion that the tolling provision is not applic able to the judicially created grace period. Petitioner filed his state post-conv iction petition on March 28, 1997, and the Oklahoma Court of Criminal Appeals af firmed the denial of post-conviction relief on August 6, 1997. Thus, th e limitations period was tolled for the 132 days that the post-conviction proceedin gs were pending in state court, resulting in a filing deadline of September 3, 1997 . Petitioner filed his § 2254 petition on August 14, 1997, within the limitations period after application of the tolling provision. Appellee argues, however, that not all the time spent in state court can be counted toward tolling the limit ations period because the post-conviction application was not “properly filed.” See 28 U.S.C. § 2244(d)(2); Hoggro , 150 F.3d at 1226 n.4. The district court did notreach this argument because it held that the tolling provision did not apply. This court granted a certificate of appealability o n April 6, 1998. We REVERSE the district court’s dismissal of the § 2254 petit ion as time-barred. We REMAND this case to the district court in light of Hoggro and for-8-

consideration of appellee’s argument regarding the amount of time, if any, that should be tolled. If the district court finds thatthe state application was properly filed, the § 2254 petition was timely, and the dist rict court is instructed to proceed accordingly.
98-6073 In this case the district court concluded that the tolling provision does not apply to the judicially created grace period. In light of Hoggro , this conclusion was error. However, even applying the tolling prov ision in this case does not save the § 2254 petition from being time-barred. P etitioner filed his state post-conviction proceeding on March 17, 1997, and the Oklahoma Court of Criminal Appeals affirmed the denial of relief on J uly 30, 1997, resulting in a total of 136 days that the limitations period was tolled. Adding these days to the April 23, 1997 deadline, petitioner’s § 2254 pe tition should have been filed on or before September 7, 1997. Since September 7th fell on a Sunday, petitioner had until Monday, September 8, 1997. The § 2254 pe tition was filed on September 9, 1997, one day after the expiration of the limitations period. Therefore, the petition was time-barred. This court granted a certificate of appealability o n April 6, 1998. Even though the district court erred in concluding that the tolling provision did not apply to the judicially created grace period, we ca n affirm on any basis supported-9-

by the record, see United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). Because the petition was untimely even afte r application of the tolling provision, we AFFIRM the district court’s dismissal of the petition as time-barred.
98-6057 In light of our holding in Hoggro , the district court’s conclusion that the statutory tolling provision does not apply to the j udicially created grace period was error. We note that the magistrate judge made specific findings regarding the dates relevant to applying the tolling provision. See Findings and Recommendation of Magistrate Judge at 4-5. The dis trict court adopted the magistrate judge’s findings and recommendation in their entirety, see District Court Order at 2, but it specifically held that the tolling provision did not apply to the grace period. We GRANT the application for a certificate of appealability. We REVERSE the district court’s dismissal of the petition as time-barred, and

we REMAND this case to the district court for application of the tolling provision. We note that there appears to be some q uestion regarding the amount of time that petitioner had a “properly filed” post -conviction application pending in state court, and we are unable to reconcile the magistrate judge’s time calculations. The district court must make finding s on remand regarding the2 Because the deadline fell on a Saturday (July 12, 1 997), petitioner had until

Monday, July 14, 1997, to file the petition. -10- amount of time that should be tolled, and it shouldadd that time onto the end of the judicially created grace period deadline of Apr il 23, 1997.
98-2094 Even though the district court’s order dismissing the § 2254 petition as time-barred was entered before our decision in Hoggro , the district court adopted the magistrate judge’s recommendation that the limi tations period be tolled while petitioner’s state court post-conviction applicatio n was pending. The state court post-conviction proceedings in this case were pendi ng for 80 days. Adding the 80 days to the end of the judicially created grace per iod gave petitioner until July 14, 1997 2to file his petition. Because the § 2254 petition was filed on August 4, 1997, it was untimely. We GRANT the application for a certificate of appealability , and we AFFIRM the district court’s dismissal of the § 2254 petit ion as untimely.
98-6221 In light of our holding in Hoggro , the district court’s finding that the tolling provision did not apply during the judicial ly created grace period was error. Even applying the tolling provision, howeve r, petitioner’s § 2254 petition3 Because the deadline fell on a Sunday (August 3, 19 97), petitioner had until

Monday, August 4, 1997 to file the petition. -11- was untimely. Petitioner’s state habeas petition w as pending in state court from April 8, 1997, until July 17, 1997, for a total of 101 days. Tolling the limitations period for 101 days resulted in a filing deadline of August 4, 1997. 3 The § 2254 petition was filed on January 21, 1998, well outsid e the limitations period. We GRANT the application for a certificate of appealability, and, because we can affirm on any basis supported by the record, see Sandoval , 29 F.3d at 542 n.6, we AFFIRM the district court’s dismissal of the § 2254 petit ion as untimely. Because the fees in this appeal have been paid, we DENY the application to proceed without prepayment of costs or fees as moot

.

Entered for the Court
Stephen H. Anderson Circuit Judge