F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 23 2000 TENTH CIRCUIT PATRICK FISHER Clerk

RICHARD LEE COTHRUM,

Petitioner-Appellant, v. Nos. 99-5220 & 99-5237 STEVE HARGETT, (D.C. No. 97-CV-491-K) (N.D. Okla.) Respondent-Appellee.

ORDER AND JUDGMENT*

Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**

An Oklahoma state jury convicted Petitioner Richard Lee Cothrum in 1989 of first

degree rape, robbery with a dangerous weapon, and kidnapping, all after former

conviction of two or more felonies in Tulsa County, Oklahoma, District Court. The jury

subsequently sentenced Petitioner to 800 years, 300 years, and 400 years imprisonment on

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** 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)(c); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. each conviction, respectively, with the sentences to run concurrently. Petitioner appealed

and the Oklahoma Court of Criminal Appeals affirmed Petitioner’s conviction and

sentence on November 29, 1989. Petitioner subsequently sought post-conviction relief in

state district court. The state court denied relief, and the Oklahoma Court of Criminal

Appeals affirmed on February 15, 1995. Cothram v. Oklahoma, No. F-86-871, unpub.

mem. op. (Okla. Crim. App. filed Feb. 15, 1995). On May 21, 1997, Petitioner filed a

petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. The

district court denied the petition as well as Petitioner’s motion for a certificate of

appealability. See 28 U.S.C. § 2255. Now before us is Petitioner’s renewed motion.1

The district court concluded that Petitioner’s § 2254 petition was untimely because

Petitioner failed to file the petition within the one-year limitations period prescribed by 28

U.S.C. § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA). Petitioner’s conviction became final on or about February 29, 1990,

after the 90 day time period for filing a petition for writ of certiorari in the United States

Supreme Court had lapsed. See Rhine v. Boone, 182 F.3d 1153, 1155-56 (10th Cir.

1999). Accordingly, Petitioner’s conviction became final before enactment of the

1 In appeal No. 99-5220, Petitioner appeals the district court’s dismissal of his § 2254 petition. We abated appeal No. 99-5220 for a period of time pending the district court’s ruling on Petitioner’s motion for reconsideration. When the district court denied Petitioner’s motion, we lifted the abatement and the appeal proceeded. Petitioner, however, filed a second notice of appeal, from the denial of his motion for reconsideration. This second notice of appeal was opened as No. 99-5237 and was consolidated with Petitioner’s previous filing, No. 99-5220.

2 AEDPA. Because Petitioner failed to file his § 2254 petition prior to April 24, 1997, the

district court concluded that his petition was untimely and dismissed it. See Hoggro v.

Boone, 150 F.3d 1223, 1225-27 (10th Cir. 1998) (holding that prisoners whose

convictions became final on or before April 24, 1996 must file habeas petitions before

April 24, 1997). While the limitations period is generally tolled during the time a

petitioner has “a properly filed application for State post-conviction or other collateral

review” pending in the state courts, 28 U.S.C. § 2244(d)(2), Petitioner’s only application

for post-conviction relief was filed and resolved prior to the April 24, 1996

commencement of the grace period. Consequently, Petitioner’s post-conviction

proceeding did not toll the limitations period. Further, the district court concluded that

Petitioner failed to demonstrate extraordinary circumstances sufficient to justify equitable

tolling of the limitations period.

A petitioner may appeal the denial of a § 2254 petition only if “a circuit justice or

judge” issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We have

thoroughly reviewed Petitioner’s application for a certificate of appealability, his brief,

the district court’s order, and the entire record before us. We conclude the Petitioner’s

petition is untimely substantially for the reasons set forth in the district court’s order

3 dismissing his petition. Accordingly, we deny Petitioner’s request for a certificate of

appealability and dismiss the appeals.2

CERTIFICATE OF APPEALABILITY DENIED; APPEALS DISMISSED.

Entered for the Court,

Bobby R. Baldock Circuit Judge

2 Petitioner also filed a Motion to Introduce Appendix, consisting of a newspaper article. Because the record already contains the article, see Petitioner’s reply brief exhibit 5 and Petitioner’s opening brief on appeal exhibit 1, Petitioner’s motion is DENIED.

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