* This order and judgment is not binding precedent, e xcept under the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

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

### SEP 13 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NERO LEWIS TECUMSEH,

Petitioner - Appellant,

v. GARY L. GIBSON; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees. No. 99-7004 (D. Ct. No. 98-CV-193-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Mr. Tecumseh, pro se, appeals the district court’s order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and requests a certificate- 2 -

of appealability. We deny his request for a certif icate of appealability pursuant to 28 U.S.C. § 2253(c) and dismiss the appeal. On August 3, 1989, a jury convicted petitioner of v arious crimes in Atoka County District Court. Petitioner was sentenced onSeptember 12, 1989, and the Oklahoma Court of Criminal Appeals affirmed both hi s conviction and sentence. Petitioner then filed a post-conviction appeal in t he state trial court on September 20, 1996. The district court denied petitioner’s application, and the court of criminal appeals affirmed the district court’s deni al on May 14, 1997. On April 20, 1998, petitioner filed a petition for writ of h abeas corpus in the U.S. District Court for the Eastern District of Oklahoma. The di strict court denied petitioner’s request for federal habeas corpus relief and petiti oner’s request for a certificate of appealability. Petitioner filed a timely notice of appeal and seeks a certificate of appealability from this court. Petitioner argues first that the district court err ed in finding his habeas petition time barred. He asserts that under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), he had one year from the dat e his state post-conviction appeal became final, or until May 15, 1998, to file his federal habeas petition. We disagree. The AEDPA provides that “[a] 1-year period of limit ation shall apply to an application for a writ or habeas corpus by a personin custody pursuant to the- 3 -

judgment of a State court.” 28 U.S.C. § 2244(d)(1) . Generally, the limitation period begins to run on the date petitioner’s conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). Because petitioner’s convi ction became final before the enactment of the AEDPA, his one-year limitation per iod began to run on April 24, 1996, the statute’s effective date. See, e.g., Hoggro v. Boone , 150 F.3d 1223, 1226 (10 th Cir. 1998). Petitioner did not file his federal h abeas petition until April 20, 1998 -- well past the one-year limitation s period. However, we toll the period of time which petitione r spent properly pursuing state post-conviction relief. 28 U.S.C. § 2244(d)(2); Hoggro , 150 F.3d at 1226. Thus, we toll the limitations period from September 20, 1996 until May 14, 1997, the time during which petitioner’s applic ation for post-conviction relief in the Oklahoma state courts was pending. Therefor e, petitioner had 236 days from May 14, 1997, or until January 5, 1998, to fil e his federal habeas petition. Because he did not file the petition until April 20 , 1998, he is time barred from seeking habeas corpus relief. Moreover, the facts contained in the record do not support equitably tolling the AEDPA limitations per iod. Petitioner further argues that the district court e rred in failing to hold a hearing as required by either Rule 8 of the Rules G overning Section 2254 Cases or 28 U.S.C. § 2243. We disagree. Rule 8(a) provi des for an evidentiary hearing only if the petition has not been dismissed at a pr evious stage in the proceedings.- 4 -

In this case, the district court dismissed the peti tion early in the proceedings because it was clear from the face of the petition that it was time barred. Similarly, under 28 U.S.C. § 2243, the district cou rt is not required to hold a hearing on an application for post-conviction relie f if “it appears from the application that the applicant or person detained i s not entitled thereto.” In petitioner’s case, there was no question that his application was time barred. Accordingly, the district court did not err in fail ing to hold a hearing under either Rule 8 or 28 U.S.C. § 2243. Finally, petitioner contends that the district court erred because it failed to notify him that he could object to respondent’s mot ion to dismiss and did not order him to file a reply. However, the district c ourt had no duty to so inform petitioner, and there is no basis for habeas relief on this ground. On July 22, 1999, Petitioner filed a motion in this court to file a supplemental appeal brief. We grant petitioner’s m otion. We conclude that petitioner has failed to make a “s ubstantial showing of the denial of a constitutional right,” as required under 28 U.S.C. § 2253(c). Accordingly, we deny his application for a certific ate of appealability.

This appeal is DISMISSED.- 5 - ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge