*This order and judgment is not binding precedent, except under the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

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*

Before BALDOCK, EBEL, 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); 10th Cir. R. 34.1.9. The case 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
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Cao’s § 2254 habeas petition as untimely under 28 U.S.C. § 2244(d). Because

Cao has not made a substantial showing of the denial 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 Center in Lexington,

Oklahoma. On July 18, 1997, Cao filed the instant habeas petition seeking relief

from an Oklahoma extortion conviction. In response to Cao’s petition, Oklahoma

filed a motion to dismiss. As grounds for its motion, Oklahoma argued that Cao’s

petition was untimely under 28 U.S.C. § 2244(d). In analyzing this issue, the

magistrate judge noted that Cao’s conviction was affirmed by the Oklahoma Court

of Criminal Appeals on January 26, 1996. According to 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 concluded 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.
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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 demonstrated the district court’s

dismissal of this § 2254 petition is debatable, reasonably 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