* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

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

### DEC 18 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRY W. JUDKINS, Petitioner - Appellant, vs. STEVE HARGETT, Respondent - Appellee. No. 98-6113 (D.C. No. CIV-97-1229-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges. **
Petitioner-Appellant Jerry W. Judkins, an inmate ap pearing pro se, appeals from the district court’s denial of his petition fo r a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He seeks leave to pr oceed in forma pauperis and a certificate of appealability. The district court d etermined that his petition was untimely, being filed after the one-year grace peri od beyond the effective date of- 2 -

the Antiterrorism and Effective Death Penalty Act o f 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, that was recognized inUnited States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). Mr. Judkins’ state conviction became final on December 22, 1994, prior to the enactment of the AEDPA. Accordingly, in the ab sence of a suspension of the time limit, he had until April 23, 1997 to file hi s federal habeas petition. See Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998); Simmonds , 111 F.3d at 746. Mr. Judkins did file a state court applicatio n for post-conviction relief on April 23, 1997, and he correctly argues that accord ing to § 2244(d)(2), the period of limitation should have been tolled while his state collateral review was pending. See Hoggro , 150 F.3d at 1226. However, Mr. Judkins’ habeas petition still fails t o meet the deadline, even as extended by the state proceedings. The state tr ial court denied Mr. Judkins post-conviction relief on June 3, 1997. The Oklaho ma Court of Criminal Appeals affirmed the denial on July 7, 1997. With the toll ing provided by § 2244(d)(2), Mr. Judkins had until July 8, 1997 to file his fede ral habeas petition. Only one day remained after the tolling period because Mr. J udkins did not file his state court application until the last day of the grace p eriod for the federal petition. Because he did not file his federal petition until July 25, 1997, the district court correctly found that his petition was untimely. Inaddition, we agree with the- 3 -

district court that Mr. Judkins has not shown any r ecognized basis for equitably tolling the deadline beyond July 8, 1997. We GRANT Mr. Judkins’ motion to proceed in forma pauperis, but because Mr. Judkins has failed to make “a substantial showing of the denial of a constitution al right,” 28 U.S.C. § 2253(c)(2), we DENY his request for a certificate o f appealability and DISMISS the appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge