* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 11 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL JAMES MORRIS, Petitioner-Appellant,

v. STEVE HARGETT, Respondent-Appellee. No. 98-6217 (D.C. No. CIV-98-106-A) (W. Dist. 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 to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Petitioner Michael Morris pled guilty to unlawful p ossession of cocaine and received a ten-year sentence in 1992. He appeals the district court’s dismissal of-2-

his 28 U.S.C. § 2254 habeas corpus petition as unti mely under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). W e affirm. In AEDPA, Congress added a one-year time limit prov ision for section 2254 federal habeas corpus petitions challenging co nvictions in state court. See 28 U.S.C. § 2244(d)(1). In those instances in whic h a petitioner’s conviction became final prior to the effective date of AEDPA, we adopted a grace period within which to file a federal habeas petition. Th is grace period extends one year from the effective date of AEDPA, April 24, 1996, and expires on April 23, 1997.
SeeUnited States v. Simmonds , 111 F.3d 737, 744-46 (10th Cir. 1997). In addition, ADEPA provides that “[t]he time during wh ich a properly filed application for state post-conviction or other coll ateral review . . . is pending shall not be counted toward any period of limitatio n under this subsection.” 28 U.S.C. § 2244(d)(2). The magistrate judge recommended, and the district court held, that Mr. Morris’ petition was untimely whether or not the AE DPA grace period would toll for state post-conviction proceedings. We have sin ce held that the grace period is tolled during such proceedings. See Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). We therefore assess the timeline ss of Mr. Morris’ petition in light of Hoggro

. The grace period clock began running with respect t o Mr. Morris’ claim on-3-

the effective date of AEDPA. When Mr. Morris filedhis first application for state post-conviction relief on March 13, 1997, the application suspended the clock, freezing it 41 days before the AEDPA grace p eriod ran out on April 23, 1997. After Mr. Morris’ state post-conviction proc eedings concluded on June 17, 1997, the clock began to run again for the remainin g 41 days, ending on July 29, 1997. Mr. Morris did not file his petition in fede ral court until January 1998, well past the tolled grace period. Mr. Morris was thus too late, even with post-convic tion tolling. He is therefore barred procedurally from filing a section2254 petition, and he is not entitled to a certificate of appealability to pursu e this barred habeas petition. For these reasons, we DENY defendant’s application for a certificate of appealability and DISMISS his appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge