UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JESSE LEE JAMES,

Petitioner-Appellant,

v.

H.N. SCOTT, a/k/a/ “SONNY” SCOTT;

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents-Appellees.

No. 99-7005

ORDER

Filed May 20, 1999

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

This matter is before the court on its own motion to amend and substitute the order

and judgment entered in this appeal on May 7, 1999. The court has determined amendment

is proper. Consequently, we vacate our prior decision and substitute the attached order and

judgment. Appellees’ motion to publish is denied. The mandate will issue on June 1, 1999
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as originally scheduled. 

Entered for the Court

PATRICK FISHER, Clerk of Court

by:

Keith Nelson

Deputy Clerk 
*

 This order and judgment is not binding precedent, except under the doctrines of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.

** After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the disposition of this

appeal. See Fed. R. App. P. 34(a)(2)(C). The case is therefore ordered submitted without

oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

MAY 20 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

JESSE LEE JAMES,

Petitioner-Appellant,

v. No. 99-7005

H.N. SCOTT, a/k/a “SONNY” SCOTT;

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents-Appellees.

(D.C. No. 98-CV-421-S)

(E.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**

 

Petitioner Jesse Lee James appeals the district court’s dismissal of his 28 U.S.C. 

§ 2254 petition for a writ of habeas corpus as time-barred. The district court denied

Petitioner’s request for a certificate of appealability (“COA”). Petitioner’s renewed

application for a COA is pending before us. See 28 U.S.C. § 2253(c)(1). After carefully
2

reviewing Petitioner’s application for a COA, his brief and the record, we conclude that

the district court correctly determined that the petition for habeas relief was time-barred

under 28 U.S.C. § 2244(d). 

Under § 2244(d)(1)(A), a habeas petition is time-barred if it is not filed within one

year from the “date on which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review.” The Oklahoma court of

Criminal Appeals affirmed Petitioner’s conviction on May 14, 1996. His conviction

became final ninety days later, on August 12, 1996, at the conclusion of the period for

filing a petition for certiorari to the United States Supreme Court. See Griffith v.

Kentucky, 479 U.S. 314, 321 n.6 (1987). Petitioner therefore had one year from August

12, 1996, in which to file his federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A). 

The one-year limitation period must be tolled while Petitioner pursued state postconviction relief. See 28 U.S.C. § 2244(d)(2). Petitioner filed his application for postconviction relief on August 6, 1997, six days before the August 12, 1997, deadline for

filing a federal habeas petition. The limitation period was tolled until August 11, 1998,

when the Oklahoma Court of Criminal Appeals denied his application for post-conviction

relief. Petitioner then had six days, or until August 17, 1998, to file his habeas petition. 

Petitioner deposited the petition in the prison mail system on August 21, 1998. See

Hoggro v. Boone, 150 F.3d 1223, 1226 n.3 (10th Cir. 1998) (date habeas petition placed

in prison mail system treated as filing date for purposes of § 2244). Therefore, the
3

petition was filed beyond the one-year limitation period. Because the petition was

untimely, the district court properly refused to address the merits of Petitioner’s claim. 

Accordingly, we DENY Petitioner’s application for a certificate of appealability and

DISMISS the appeal.

Entered for the Court,

Bobby R. Baldock

Circuit Judge