*This order and judgment is not binding precedent, except under the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

JAN 29 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAYMOND GENE MIDDLETON,

Petitioner - Appellant, No. 98-6349

v. (W.D. Oklahoma)

HOWARD RAY,

Respondent - Appellee.

(D.C. No. 97-CIV-1934)

ORDER AND JUDGMENT*

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Petitioner-Appellant Raymond Gene Middleton, an Oklahoma state inmate

appearing pro se, seeks a certificate of appealability in order to appeal from the
1Middleton contends that he was denied effective assistance of counsel

because, through no fault of Middleton’s, his counsel withdrew before completing

the appeal. Inasmuch as the petition is untimely, we dismiss without reaching the

merits of the claim. 

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district court’s denial of his petition for a writ of habeas corpus filed pursuant to

28 U.S.C. § 2254. The district court determined that his petition was untimely

under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 18 U.S.C.

§ 2244(d), and dismissed the action.

Following a jury trial in Oklahoma state court, Middleton was convicted

and sentenced in 1995 on one count of manslaughter in the first degree and on

one count of feloniously pointing a weapon. Since no direct appeal was

completed,1 at the latest, Middleton’s state conviction became final on January 16,

1996, before the effective date of the AEDPA. Accordingly, unless the § 2244

limitations period was tolled, Middleton had until April 23, 1997, to file his

federal habeas petition. United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.

1997).

Six days before the expiration of the limitations period, on April 17, 1997,

Middleton filed a state court application for post-conviction relief, and that

application tolled the running of the limitations period during the pendency of the

state collateral proceedings, until September 30, 1997, when the Oklahoma Court
2Middleton sought no further state court relief.

3We note that, in his appellate brief, Middleton makes several arguments on

this point which he did not make before the district court, and which we therefore

do not consider. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.

1992). 

-3-

of Criminal Appeals affirmed the state district court’s denial of the petition,2 28

U.S.C. § 2244(d)(2); see Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). 

Thus, after the Oklahoma Court of Criminal Appeals ruled, Middleton had six

days in which to file his federal petition. Hoggro, 150 F.3d at 1226. Since

Middleton did not file his petition in federal court until December 3, 1997, well

past the tolled period, the district court correctly found that the filing was

untimely. In addition, we agree with the magistrate judge’s further conclusion,

which the district court adopted, that Middleton has not shown any recognized

basis for equitable tolling.3

Because Middleton has failed to make “a substantial showing of the denial

of a constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his request for a

certificate of appealability and DISMISS the appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge