* This order and judgment is not binding precedent, e xcept under the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

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

### JUN 27 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEROY T. BRYANT, Petitioner-Appellant,

v. No. 99-6456 H.N. SCOTT, Warden, Respondent-Appellee. (D.C. No. 99-CV-867-C) (W.D.Okl.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Leroy Bryant appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus relief. We exercise jur isdiction pursuant to 28 U.S.C.2

§ 1291, deny Bryant a certificate of appealability, and dismiss the appeal.
I. Bryant was convicted in Oklahoma state court of tra fficking in illegal drugs and sentenced to life in prison without parol e on April 22, 1993. He did not appeal his conviction. On May 11, 1998, Bryantfiled an application for postconviction relief in Oklahoma state court, assertin g his right to counsel was violated when his attorney did not file a direct ap peal. The state district court denied the application and Bryant did not appeal th e denial. On September 28, 1998, Bryant filed a second application for post-co nviction relief in Oklahoma state court, asserting the court improperly denied his first application for postconviction relief. On March 9, 1999, the state dis trict court denied the application, concluding that Bryant did not raise any new issues of law or genuine issues of material facts. On May 25, 1999, the Oklahoma Court of Criminal Appeals affirmed that denial. On June 17, 1999, Bryant filed a 28 U.S.C. § 2254 p etition for habeas corpus relief in federal district court. Bryant al leged the state court failed to strictly follow the contemporaneous objection rule (Okla. Stat. tit. 22, § 1086) and he received ineffective assistance of counsel b ecause his attorney failed to file a direct appeal. The government filed a motio n to dismiss, alleging Bryant failed to file his petition within the limitations period of the Antiterrorism and3

Effective Death Penalty Act (AEDPA). Bryant respon ded that his failure to timely file the petition was due to extraordinary c ircumstances. The magistrate recommended dismissing Bryant’s petition as untimely and Bryant did not object to the magistrate’s report. On November 29, 1999, the district court adopted the magistrate’s report and recommendation, dismissed B ryant’s petition, and denied a certificate of appealability. The district court also denied leave to proceed on appeal in forma pauperis.
II. In reviewing the denial of habeas relief, we reviewthe district court’s factual findings under a clearly erroneous standardand its legal conclusions de novo. Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied , 120 S. Ct. 944 (2000). On appeal, Bryant contends he w as denied his right to appeal and the interest of justice exception excused his f ailure to object to the magistrate’s report and recommendation. Generally, this court applies a firm waiver rule wh ich by its application results in the waiver of appellate review of factua l and legal questions when the appellant fails to object to the magistrate’s findings. Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). Bryant contends he never received the magistrate’s report. If true, this may excuse Bryant’s failure to file an objection to the magistrate’s report. See id. (noting that firm waiver rule “need not be4

applied when the interests of justice so dictate”). For purposes of this appeal we will assume that Bryant did not receive the magistr ate’s report through no fault of his own and address this case on the merits. The magistrate concluded that Bryant’s § 2254 petit ion was untimely filed. Under the AEDPA, “[a] 1-year period of limitation s hall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Bryant’s co nviction became final on July 21, 1993, when the time for filing a direct appeal had passed. See Okla. Stat. tit. 22, § 1051 (stating that defendant has 90 days afte r conviction to appeal). The AEDPA became effective on April 24, 1996. Because Bryant’s conviction became final before the effective date of the AEDPA , he had until April 23, 1997, to file his federal habeas petition. See United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). Bryant’s state pos t-conviction applications did not toll the limitations period, because they were filed after the limitations period. Bryant filed his § 2254 petition with the district court on June 17, 1999. This was untimely. The limitations period of § 2244(d) may be subject to equitable tolling. Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). Bryant has f ailed to show he was excused from timely filing his petition. See 28 U.S.C. § 2244(d)(1) (listing circumstances in which time for filing petition maybe extended). Bryant knew5

of his attorney’s failure to file a direct appeal b y May 11, 1998, at the latest (when he filed his application for post-conviction relief), yet did not file his § 2254 petition until June 17, 1999. Bryant presents no reason for not filing his § 2254 petition within the limitations period. Furth er, we note Bryant does not contend that “a constitutional violation has result ed in the conviction of one who is actually innocent or incompetent.” See Miller , 141 F.3d at 978. Bryant’s habeas petition was untimely and subject to dismiss al.
III. We DENY Bryant a certificate of appealability and D ISMISS the appeal. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge