* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### FEB 12 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LINCOLN EDWARD TAYLOR, Petitioner - Appellant, v. STEVE HARGETT, Respondent - Appellee. No. 98-6335 (D.C. No. CIV-98-329-T) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.

Lincoln Edward Taylor appeals the district court’s refusal to grant a certificate of appealability to appeal the denial o f his petition for habeas relief. We have jurisdiction under 28 U.S.C. § 1291, and af firm. Petitioner Taylor was convicted by an Oklahoma stat e court in 1987 on robbery charges. On March 4, 1998, he filed a habe as petition, challenging his conviction on various grounds, including double jeo pardy and due process. The1 The district court also accepted the magistrate’s recommendation that even if

Taylor’s claims were considered on the merits, he was not entitled to habeas relief. Given our conclusion that Taylor’s petition is time-barred, we do not reach the merits of his appeal. - 2 - district court adopted a magistrate judge’s recomme ndation denying the petition as time-barred. 1 Concluding that Taylor had failed to demonstrate the denial of a constitutional right, the court also refused to gra nt his application for a certificate of appealability. In reviewing a denial of a habeas petition, we revi ew the district court factual findings for clear error, and apply the de novo standard to its legal conclusions. Wildermuth v. Furlong , 147 F.3d 1234, 1236 (10th Cir. 1998). We conclude that the district court correctly denie d Taylor’s habeas petition as time-barred. The Antiterrorism and Effective De ath Penalty Act of 1996 (“AEDPA”) provides that “[a] 1-year period of limit ation shall apply to an application for a writ of habeas corpus by a personin custody pursuant to the judgment of a State Court.” 28 U.S.C. § 2244(d)(1) . For prisoners like Taylor who were convicted before the passage of the statut e, the one year limitation period does not begin to run until April 24, 1996, AEDPA’s effective date. See Hoggro v. Boone , 150 F.3d 1223, 1225 (10th Cir. 1998). Taylor filed his petition on March 4, 1998, some 31 4 days after the limitation period expired on April 24, 1997. The s tatute requires us to toll the2On May 9, 1996, Taylor filed an application for post-conviction relief, which was

denied on June 20, 1996. On October 30, 1996, the Oklahoma Court of Criminal Appeals affirmed the dismissal of Taylor’s third duplicate application for post-conviction appeal which he had filed on July 3, 1996. On January 23, 1997, Taylor filed another application seeking leave to appeal the denial of his first post-conviction application (filed before AEDPA’s effective date). The Oklahoma Court of Criminal Appeals granted the request for leave to appeal but ultimately denied the application for post-conviction relief on May 8, 1997. SeeR. doc. 12 at 5-6. - 3 - approximately 266 days 2 after AEDPA’s effective date that Taylor spent see king post-conviction relief in Oklahoma state courts. S ee 28 U.S.C. § 2244(d)(2). Even so, Taylor was forty-seven days late in filing his habeas petition, which the district court correctly dismissed as time-barred. AFFIRMED. The mandate shall issue forthwith. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge