Pedraza v. State of Oklahoma

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 25, 1999
• Docket: 98-7127
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 25 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

JESUS PEQUENO PEDRAZA,

Petitioner-Appellant,

v. No. 98-7127 (D.C. No. CV-98-12-B) STATE OF OKLAHOMA; (E.D. Okla.) ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.

ORDER AND JUDGMENT *

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

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Petitioner Jesus Pequeno Pedraza, a state prisoner appearing pro se, appeals

the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as

untimely. 1 Petitioner’s judgment of conviction was final on October 5, 1996.

Because petitioner’s conviction became final after the effective date of the

Antiterrorism and Effective Death Penalty Act (April 24, 1996), he had one year

from the date the judgment became final to file an application for habeas corpus

relief. See 28 U.S.C. § 2244(d)(1)(A).

Petitioner filed an application for habeas corpus relief with the district

court on January 27, 1997, but the petition was dismissed without prejudice for

failure to exhaust state remedies on September 30, 1997. Petitioner filed the

present petition on January 12, 1998, raising only the exhausted claims from the

first petition. Because the petition was not filed within one year of October 5,

1996, the date on which the judgment of conviction became final, it was

time-barred under the statute.

Petitioner argues that the limitation period was tolled from the time he filed

his first federal habeas petition until the district court dismissed it for failure to

1 We recognize that petitioner filed his notice of appeal more than thirty days after the order dismissing the petition, see Fed. R. App. P. 4(a)(1), but because the district court did not enter a separate judgment pursuant to Fed. R. Civ. P. 58, the time for filing a notice of appeal did not begin to run and, consequently, the notice of appeal was not untimely. Because remanding for entry of a separate judgment would not promote judicial economy, we exercise jurisdiction over this appeal. See Clough v. Rush , 959 F.2d 182, 186 (10th Cir. 1992).

-2- exhaust, and, therefore, his petition was within the one year limitation period.

Contrary to petitioner’s assertion, the tolling provision in 28 U.S.C. § 2244(d)(2)

does not save his petition. Pursuant to that section, only the time during which a

properly filed application for state post-conviction or other state collateral review

is pending is tolled. See Rhine v. Boone, No. 98-6353, 1999 WL 459312, at *3

(10th Cir. July 7, 1999); Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir.

1999) (defining “pending” to include “all of the time during which a state

prisoner is attempting, through proper use of state court procedures, to exhaust

state court remedies with regard to a particular post-conviction application”).

Because the federal habeas petition was “neither an application for state

post-conviction review nor an application for other state collateral review,” it

did not toll the limitation period. Rhine, 1999 WL 459312, at *3. Therefore,

the district court correctly dismissed the petition for habeas relief as untimely.

The application for a certificate of appealability is DENIED, and the appeal is

DISMISSED.

Entered for the Court

Bobby R. Baldock Circuit Judge

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