* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 

### JUL 19 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THEODORE R. WALKER, Petitioner-Appellant, v. THE STATE OF OKLAHOMA, and JAMES R. SAFFLE, Director, Respondents-Appellants. Nos. 01-6073 and 01-6059 (D.C. Nos. 00-CV-1149-L and 00-CV-1109-L) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY and LUCERO , Circuit Judges.

Petitioner-Appellant Theodore R. Walker (“Walker”) seeks a Certificate of Appealability to appeal the district court’s dismis sal of two separate petitions for habeas corpus, which we have consolidated sua spont e for disposition in this order and judgment. In addition, he moves this cou rt for leave to proceed in forma pauperis for purposes of appeal pursuant to 2 8 U.S.C. § 1915.1 Walker filed a motion to withdraw this guilty plea on June 28, 1988, which

was denied on July 1, 1988. (No. 01-6059 Doc. 17 at 3.) He appealed the denial of this motion, and the Oklahoma Court of Criminal Appeals affirmed the trial court’s decision on August 15, 1989. (Id. ) - 2 - Walker pled guilty in December 1987 to larceny from a retailer, possession of a signed credit card, and forgery, and received a three-year suspended sentence for each conviction. (No. 01-6073 Doc. 13 at 1.) On May 12, 1988, Walker pled guilty to additional charges that included two coun ts of first-degree robbery, five counts of first-degree burglary, second-degree robb ery, unauthorized use of a motor vehicle, and robbery with a firearm, all of w hich were subject to sentencing enhancements because of his prior felony conviction s. (No. 00-6059 Doc. 17 at 1.) See Okla. Stat. tit. 21 § 51(B). Walker was sentenced to forty years imprisonment for each of the two robbery conviction s and to twenty years imprisonment for each of the remaining convictions, with all sentences to be served consecutively. 1 (Id. at 1-2.) Finally, on June 21, 1988, Walker pled g uilty to applications to revoke the three suspended sente nces he received in December 1998. (No. 01-6073 Doc. 13 at 2.) He was sentence d to three years on each count, to be served concurrently with his forty year sentence for the first robbery conviction. (Id. ) Walker has filed two petitions for writs of habeas corpus. In case number 01-6073, Walker challenges the revocation of the th ree suspended sentences on- 3 -

grounds that his trial counsel in the December 1987 proceeding had a conflict of interest that rendered her unable ethically to repr esent Walker, and she failed to inform him of all of the advantages and disadvantag es of pleading guilty. (No. 01-6073 Doc. 3 at 5-6.) In case number 01-6059, Wa lker alleges his sentences were wrongfully enhanced pursuant to Okla. Stat. ti t. 21 § 51(B) because his prior convictions were “factually insufficient” to support the enhancement, and because of his counsel’s alleged conflicts of interest. (N o. 01-6059 Doc. 2 at 5-6.) The district court dismissed both petitions because they were untimely under the one-year statute of limitations set by th e Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2244(d)(1). The district court reasoned that, because Walker’s convictions all bec ame final before the effective date of AEDPA, April 24, 1996, his right to petitio n for a writ of habeas corpus was subject to a one-year grace period ending on Ap ril 23, 1997. (No. 01-6073 Doc. 13 at 3; No 01-6059 Doc. 17 at 3.) See Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998). Walker did not file his petitions for state postconviction relief until September 1999 in case numb er 01-6073 and October 1999 in case number 01-6059. (No. 01-6073 Doc. 13 at 4; No. 01-6059 Doc. 17 at 3- 4.) He filed both of his federal petitions for hab eas corpus in June 2000. (No. 01-6073 Doc. 13 at 4; No. 01-6059 Doc. 17 at 3-4.) Therefore, the district court found that the petitions were untimely and that con siderations of equity did not2 On appeal, Walker has argued that the district court erred in applying a

one-year statute of limitations because his petitio ns should have been construed under 28 U.S.C. § 2241 rather than § 2254. Even if we were to accept Walker’s contention that his petitions raise claims under § 2241, such claims are still subject to a one-year statute of limitations beginn ing “on the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). In this case, Walker has made no showing that his claims could no t have been discovered through the exercise of due diligence so as to toll the statute. Therefore, here too, he fails to make a substantial showing of the denia l of a constitutional right. - 4 - operate to excuse the untimely filings. (No. 01-60 73 Doc. 15 at 1-2, Doc. 13 at 4; No. 01-6059 Doc. 19 at 2, Doc. 17 at 7-9.) For substantially the reasons set forth in the district court’s orders, 2 we find that Walker’s petitions do not make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We therefore deny his requests for Certificates of Appealability and accordingly we DI SMISS his petitions. For the same reasons, we find that his appeal is not taken in good faith, and thus we DENY his motion to proceed in forma pauperis.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge