* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and 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 

### APR 27 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PHU QUOC CAO, Petitioner-Appellant,

v. STEVE HARGETT, Respondent-Appellee. No. 97-6377 (W. District of Oklahoma) (D.C. No. CIV-97-1182-R)

ORDER AND JUDGMENT *

BeforeBALDOCK , EBEL, and MURPHY , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. This case is before the court on Phu Quoc Cao’s pro se application for a certificate of appealability. Cao seeks to appeal the district court’s dismissal of-2-

Cao’s § 2254 habeas petition as untimely under 28 U .S.C. § 2244(d). Because Cao has not made a substantial showing of the denia l of a constitutional right, this
court denies his request for a certificate of appealability and dismisses the appeal. Cao is an inmate at the Lexington Correctional Cent er in Lexington, Oklahoma. On July 18, 1997, Cao filed the instant habeas petition seeking relief from an Oklahoma extortion conviction. In responseto Cao’s petition, Oklahoma filed a motion to dismiss. As grounds for its moti on, Oklahoma argued that Cao’s petition was untimely under 28 U.S.C. § 2244(d). I n analyzing this issue, the magistrate judge noted that Cao’s conviction was af firmed by the Oklahoma Court of Criminal Appeals on January 26, 1996. Accordingto the magistrate, Cao’s conviction became final on April 25, 1996, when the ninety day period for seeking certiorari review with the United States Supreme Court expired without Cao seeking such review. Furthermore, because Cao had not responded to Oklahoma’s motion to dismiss, the magistrate conclu ded that there were no grounds upon which to toll the limitations period set out in § 2244(d). Upon de

novo review, the district court adopted the magistrate’ s Report and Recommendation and further noted that Cao’s claims that he was not versed in the law and was unaware of the limitations period were not sufficient to toll the limitations period.-3-

This court has conducted a de novo review of Cao’s application for a certificate of appealability, his appellate brief, the magistrate’s Report and Recommendation, the district court’s Order, and the entire record on appeal. Based on that review, we conclude Cao has not demon strated the district court’s dismissal of this § 2254 petition is debatable, rea sonably subject to a different outcome on appeal, or otherwise deserving of further proceedings. See Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983). Accordingly, this court DENIES Cao’s motion for a certificate of appealability and DISMISSES his appeal. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge