*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 11 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEE TRAYLOR,

Petitioner-Appellant, 

v.

GARY GIBSON,

Respondent-Appellee. 

Nos. 99-6016 and 99-6112

(W. Dist. of Oklahoma)

(D.C. No. CIV-98-364-R)

ORDER AND JUDGMENT*

Before BRORBY, KELLY, and MURPHY, Circuit Judges. 

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This case is before the court on Lee Traylor’s pro se petition for a

certificate of probable cause, which this court construes as a petition for a
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certificate of appealability (“COA”), and motion for leave to proceed on appeal in

forma pauperis. Traylor seeks a COA so that he can appeal the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. §

2253(c)(1)(a). The district court dismissed Traylor’s § 2254 petition on the

grounds that it was brought outside of the one-year limitations period set out in 28

U.S.C. § 2244(d). As set forth more fully below, Traylor has not made a

substantial showing of the denial of a constitutional right and is, therefore, not

entitled to a COA. See id. § 2253(c)(2). Furthermore, a review of Traylor’s

appellate filings confirms the district court’s conclusion that this appeal is not

taken in good faith. See id. § 1915(a)(3). Accordingly, this court denies Traylor a

COA, denies Traylor’s request to proceed on appeal in forma pauperis, and

dismisses this appeal.

Traylor was convicted and sentenced upon a plea of guilty to assault and

battery on April 2, 1979, in Oklahoma state court. Traylor did not appeal this

conviction but, instead, filed a habeas corpus petition in state court on June 11,

1997. That state petition was denied on September 24, 1997; the Oklahoma Court

of Criminal Appeals declined to assume jurisdiction and dismissed Traylor’s

request for habeas relief on December 24, 1997. Traylor filed the instant § 2254

habeas petition on March 26, 1998.
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In response to Traylor’s § 2254 habeas petition, the district court directed

the parties to address whether Traylor’s challenge to his conviction was barred by

the one-year statute of limitations set forth in § 2244(d). After reviewing the

parties’ submissions, the district court concluded that Traylor’s § 2254 petition

was untimely. In particular, the district court noted that although Traylor’s

conviction became final in 1979, Traylor had one year from the April 24, 1996,

effective date of § 2244(d) to file for federal habeas corpus relief. See United

States v. Simmonds, 111 F.3d 737, 744-46 (10th Cir. 1997). Traylor, however,

did not file his § 2254 petition until March 26, 1998, well beyond the grace period

established by this court in Simmonds. Furthermore, even though § 2244(d) tolls

the running of the limitations period during any time “properly filed” state postconvictions proceedings are pending, see Hoggro v. Boone, 150 F.3d 1223, 1226

(10th Cir. 1998), Traylor filed his first “proper” state petition in June of 1997,

well after the § 2244(d) limitation period had already expired. In addition, the

district court concluded that Traylor’s conclusory assertions of a state created

impediment to the filing a federal habeas petition were particularly unconvincing

in light of the fact that Traylor had not even sought to properly utilize

Oklahoma’s state post-conviction remedies until the federal limitations period had

already expired, approximately eighteen years after Traylor had pleaded guilty in

state court. Accordingly, the district court dismissed Traylor’s § 2254 petition as
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untimely. Shortly thereafter, the district court denied Traylor’s belated motion for

recusal, noting that Traylor’s allegations of bias were based exclusively on the

fact that Judge Russell had ruled against Traylor in the past. As noted by the

district court, adverse judicial rulings, standing alone, do not constitute a valid

basis for recusal based on bias or partiality. See Liteky v. United States, 510 U.S.

540, 555 (1994).

Traylor is entitled to a COA only if he can demonstrate that the district

court’s resolution of his § 2254 petition is deserving of further proceedings,

reasonably debatable among jurists of reason, or subject to a different resolution

on appeal. Barefoot v. Estelle, 463 U.S. 880, 893 (1983). This court has

reviewed Traylor’s petition for a COA, appellate brief, and supplemental

appellate brief; the district court’s Memorandum Opinion and Order dated

October 22, 1998, dismissing Traylor’s petition, the district court’s order dated

November 3, 1998, denying Traylor’s motion for recusal, and the district court’s

order dated May 25, 1999, denying Traylor’s motion for reconsideration; and the

entire record on appeal. That close review clearly demonstrates the district

court’s dismissal of Traylor’s § 2254 petition as untimely is not deserving of

further proceedings on appeal or subject to a different resolution on appeal. 

Accordingly, we DENY Traylor’s request for a COA, DENY Traylor’s request to

proceed on appeal in forma pauperis, and DISMISS the appeal. Traylor’s
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“Motion for Transfer to Cure Want of Jurisdiction” is DENIED as moot in light

of the fact that the district court denied Traylor’s motion for reconsideration on

May 25, 1999.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge