* This order and judgment is not binding precedent, except under the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); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### FEB 7 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
SONNY LAUREN HARMON, Petitioner - Appellant, vs. GLYNN BOOHER, Warden, Respondent - Appellee. No. 00-6265 (D.C. No. CIV-00-452-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges. **
Mr. Harmon seeks to appeal from the denial of his h abeas petition, 28 U.S.C. §§ 2241 and 2254. Upon recommendation of th e magistrate judge, the district court dismissed the action as untimely pur suant to 28 U.S.C. § 2244(d)(1)(D). Mr. Harmon was convicted of operation of a chop shop, possession of a- 2 -

motor vehicle with altered VIN number, and conspira cy to operate a chop shop, all after former conviction of two or more felonies , and sentenced to twenty-year concurrent terms. The judgments and sentences were entered February 7, 1992, but did not reflect the former conviction of two ormore felonies, which would result in Mr. Harmon’s ineligibility for “emergencytime credits.” Okla. Stat. Ann. tit. 57, § 573 (West 1991). The judgments wer e amended on December 3, 1993, but Mr. Harmon continued to receive the credi ts for years thereafter. He contends that he was not aware of the factual predi cate of his habeas claim until February 10, 1998, when he received notice of the r emoval of the credits. See 28 U.S.C. § 2244(d)(1)(D). Even making the dubious as sumption that this assertion is correct, his current federal petition, filed Mar ch 6, 2000, is time barred. Mr. Harmon filed a federal habeas petition raising these matters on April 17, 1998. That petition was dismissed without prej udice on October 21, 1998, for failure to exhaust state court remedies. We recent ly held that a federal habeas petitioner is entitled to toll the period a federal petition is pending before being dismissed without prejudice for failure to exhaust. Petrick v. Martin , ___ F.3d ___, ___ No. 99-6399, 2001 WL 8313, at *5 (10th Ci r. Jan. 3, 2001). Accordingly, Mr. Harmon would be able to toll the approximately six months from April 17 to October 21, 1998. Mr. Harmon then sought state post-conviction relief on June 15, 1999, R.- 3 -

doc. 13 at 5; the state district court denied relie f on June 17, 1999. Mr. Harmon appealed to the Oklahoma Court of Criminal Appeals which affirmed the state district court on September 13, 1999. Accordingly, Mr. Harmon would be entitled to toll approximately three months from June 15, 19 99, to September 13, 1999. See28 U.S.C. § 2244(d)(2). As noted, the instant pet ition was filed March 6, 2000, almost twenty-five months after the factual p redicate for the claim ostensibly became known. Approximately nine months of tolling will not bring this petition within the one-year limitation period . See 28 U.S.C. § 2244(d)(1)(D). Moreover, given Mr. Harmon’s unsu ccessful challenges to the amended judgments that predated the loss of his eme rgency time credits, this is hardly a case for equitable tolling. The motion for leave to proceed without prepayment of fees or costs is denied; the application for a certificate of appeal ability is denied for want of a substantial showing of the denial of a constitution al right, see 28 U.S.C. § 2253(c)(2); Slack v. McDaniel , 120 S. Ct. 1595, 1603-04 (2000), and the appeal is dismissed. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge