UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARCEL LAMAR JACKSON,

Petitioner - Appellant,

v.

RONALD J. CHAMPION,

Respondent - Appellee.	No. 98-5251

(D.C. No. 98-CV-26-B)

(Northern District of Oklahoma)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and LUCERO, Circuit Judges.

Marcel Jackson, pro se, appeals the district court's denial of his habeas petition and requests a certificate of appealability. Exercising jurisdiction under 28 U.S.C. § 1291, we deny his request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c).

On January 4, 1994, Petitioner Jackson pled nolo contendere in an Oklahoma state trial court to illegal drug possession after a prior felony conviction. Upon receiving a 20-year jail sentence and a fine of five hundred dollars, Jackson filed a motion to withdraw his plea. The trial court denied the motion, and the Oklahoma Court of Criminal Appeals affirmed.

Subsequently, Jackson unsuccessfully sought state post-conviction relief. On January 12, 1998, he filed a petition for habeas corpus in the United States District Court for the Northern District of Oklahoma. The district court denied the petition as time-barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The court also denied Jackson's petition for a certificate of appealability because he had failed to make a substantial showing of the denial of a constitutional right.

Jackson argues that the district court violated various provisions of the United States Constitution, including the Due Process Clause of the Fifth Amendment,1 when it dismissed his petition and denied his request to amend his reply to the state's motion to dismiss. He also claims that the district court erroneously failed to toll the time he spent exhausting state remedies and seeking post-conviction relief.

AEDPA provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1). Generally, the limitation period begins to run on the date that the prisoner's conviction becomes final. Because his conviction became final before the enactment of AEDPA, Jackson's one-year limitation period began to run on April 24, 1996, the statute's effective date.2 See United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Jackson sought habeas review on January 12, 1998, some 628 days after the limitation period began to run. We are required, however, to toll the 128 days3 Jackson spent properly pursuing state post-conviction relief. See 28 U.S.C. § 2244(d)(2); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). Even after we toll this period, Jackson filed his habeas petition outside the one year limitation period.4 The district court thus correctly dismissed his petition as time-barred.

The district court also correctly denied Jackson's request to amend his reply to the state's motion to dismiss. Jackson argues that his amended reply would have shown that he filed his petition late because the state denied, inter alia, his First Amendment right of access to the courts. Jackson fails to demonstrate in his motion before the district court or in his petition on appeal how the state denied his rights of access to the courts. Because Jackson does not make a substantial showing of the denial of a constitutional right, his request for a certificate of appealability must be denied. See 28 U.S.C. § 2253(c)(2).

DISMISSED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge