* 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not binding precedent, except under the doctrines of law of the case, res judicata,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

JUN 21 2002

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JASON BLAKE SHOEMAKE,

Petitioner - Appellant,

v.

ELVIS HIGHTOWER,

Respondent - Appellee.

No. 02-7008

(No. 01-CV-238-P)

(E.D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and O’BRIEN , Circuit Judges.

Pro se petitioner Jason Blake Shoemake, an Oklahoma state prisoner, seeks

a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c) t o

challenge the district court’s dismissal of his petition for a writ of habeas corpus

as time-barred. We deny Shoemake’s application for a COA and dismiss this

matter.
-2-

On April 7, 1994, Shoemake pled guilty to two counts of unlawful delivery

of amphetamine within one-thousand feet of a school. He received two five-year

deferred sentences, but on September 15, 1995, the deferred sentences were

accelerated due to a parole violation. Shoemake did not seek to withdraw his plea

or appeal to the Oklahoma Court of Criminal Appeals, so his conviction became

final ten days after his sentencing at the acceleration hearing. See Okla. Stat. tit.

22, Ch. 18, App., Rule 4.1 (1986) (current version at Rule 4.2). His conviction

thus became final on September 25, 1995. Shoemake did not file an application

for post-conviction relief in state court until April 28, 2000. The application was

denied, and that decision was affirmed on appeal on August 8, 2000. Shoemake

filed a petition for a writ of habeas corpus on April 30, 2001. 

This Court may issue a COA only if an applicant “has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting

this standard requires “a demonstration that . . . includes showing that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were

‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). 

We review the legal conclusions of a district court in a habeas proceeding de

novo. Martin v. Kaiser, 907 F.2d 931, 933 (10th Cir. 1990). 
-3-

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a state prisoner generally has one year from the date his conviction

becomes final to file a petition for a writ of habeas corpus in federal court. See

28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court.”). Because Shoemake’s conviction became final before

April 24, 1996—the effective date of AEDPA—he had until April 23, 1997, to

file his habeas petition. See Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998). 

Although the AEDPA period of limitation is tolled during the time in which a

“properly filed application for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is pending,” 28 U.S.C.

§ 2244(d)(2), Shoemake’s state post-conviction actions cannot toll the period of

limitation because they were filed well after the April 23, 1997 date on which his

habeas petition was due. 

The district court correctly determined that Shoemake’s habeas petition was

time-barred. Shoemake’s application for a COA is DENIED. His motion to

proceed in forma pauperis is GRANTED.
-4-

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge