* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The 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 

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner-Appellant Raymond Gene Middleton, an Okl ahoma state inmate appearing pro se, seeks a certificate of appealabil ity in order to appeal from the1 Middleton contends that he was denied effective ass istance of counsel

because, through no fault of Middleton’s, his couns el withdrew before completing the appeal. Inasmuch as the petition is untimely, we dismiss without reaching the merits of the claim. -2- 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 th at 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, Mid dleton 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. Acco rdingly, 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 p eriod, on April 17, 1997, Middleton filed a state court application for post- conviction relief, and that application tolled the running of the limitations p eriod during the pendency of the state collateral proceedings, until September 30, 1 997, when the Oklahoma Court2Middleton sought no further state court relief.

3 We note that, in his appellate brief, Middleton mak es several arguments on this point which he did not make before the distric t 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, 228 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 correctl y found that the filing was untimely. In addition, we agree with the magistrat e judge’s further conclusion, which the district court adopted, that Middleton ha s 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