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

### NOV 5 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILLY RAY WILLIAMS, Petitioner - Appellant,

vs. STEVEN BECK; STATE OF OKLAHOMA, Respondent - Appellee. No. 04-6184 (D.C. No. CV-04-135-T) (W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.
Petitioner-Appellant Billy Ray Williams, a state in mate appearing pro se, seeks to appeal from the dismissal of his habeas pe tition, 28 U.S.C. § 2254. Upon recommendation of the magistrate judge, the distric t court dismissed three of the claims contained in the petition as time-barred pur suant to 28 U.S.C. § 2244(d) and not saved by equitable tolling, and then summar ily dismissed the one remaining claim as not cognizable in habeas pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States D istrict Courts. For this court to have jurisdiction over Mr. Williams’ appeal, a certificate of appealability (“COA”) must be granted. 28 U.S.C . § 2253(c)(1)(A); Miller-El- 2 -

v. Cockrell , 537 U.S. 322, 327 (2003). To make such a showing , Mr. Williams must demonstrate that “jurists of reason would findit debatable whether the petition states a valid claim of the denial of a co nstitutional right.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). For a denial based upo n procedural grounds, Mr. Williams must demonstrate “that jurist s of reason would find it debatable whether the petition 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 procedural ruling.” Id. Mr. Williams pleaded guilty on November 27, 2001 to escape from a penitentiary after former conviction of a felony an d was sentenced to seven years imprisonment. Because he did not file a timely ple ading seeking to withdraw his guilty plea or seeking a direct appeal, his convict ion became final on December 7, 2001, ten days after entry of the judgment. See Okla. Crim. App. R. 4.2(A), Okla. Stat. tit. 22, ch. 18, app. On October 23, 2002, M r. Williams moved to modify his sentence, the motion was granted and the amended ju dgment and sentence was filed on October 31, 2002. R. Doc. 15, Ex. 6; Doc. 18 at 2 & 7 n.11. Thus, at most, the limitation period was tolled for eight days, resulting in the one-year limitation period expiring on December 17, 2002. S ee 28 U.S.C. 2224(d)(1)(A) & (2). This action was deemed filed on February 2, 2004, a nd is therefore time-- 3 -

barred. Although Mr. Williams sought state postcon viction relief subsequent to December 17, 2002, that would not toll the limitati ons period. See Fisher v. Gibson , 262 F.3d 1135, 1142-43 (10th Cir. 2001). On appeal, Mr. Williams argues that because Okla. Stat. Ann. tit. 22, § 982a allows a state district court to modify a s entence within twelve months after imposing it under certain circumstances, no j udgment and sentence is final in Oklahoma until the twelve-month period has run. He also argues that because an amended judgment and sentence was in fact entere d in his case on October 31, 2002, that is when his one-year limitation period u nder 28 U.S.C. § 2244(d)(1)(A) begins to run. Section 2244(d)(1)(A) provides that the one-year pe riod runs from “the date on which the judgment became final by the conclusio n of direct review or the expiration of the time for seeking such review.” W e agree with the respondents that the sentence modification procedure is not part of the direct review process under Oklahoma law. R. Doc. 15 at 3-4; see Orange v. Calbone , 318 F.3d 1167, 1170-71 (10th Cir. 2003) (inquiry is whether state procedure is part of the direct review process; Oklahoma’s appeal out of time proce dure is part of that process). The motion for sentence modification may be made in the trial court regardless of whether direct review is pending; the trial court h as jurisdiction even if an appeal of the original judgment and sentence is pending, t hough it must inform the- 4 -

OCCA of the disposition of the motion. Dowdy v. Ca swell , 43 P.3d 412, 414 (Okla. Crim. App. 2002). Moreover, we note the ori ginal judgment and sentence (or the events surrounding it) furnishes the predic ate of Mr. Williams’ habeas claims--not the amended judgment and sentence resul ting from the sentence modification. We are satisfied that the district court’s resoluti on of the limitations issue is not debatable or wrong. Accordingly, we DENY Mr. W illiams application for a COA, DENY his request to proceed in forma pauperis as moot, and DISMISS the appeal. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge