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Filed: Patrick Fisher
Filed: Patrick Fisher
SEP 10 2001
PATRICK FISHER
Clerk
v.
No. 01-6060
(D.C. No. CIV-99-1451-L)
(W. District of Oklahoma)
Respondents-Appellees.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges.
the expiration of the time for seeking such review. 28 U.S.C 2244(d)(1)(A).
The one-year period of limitation is subject to equitable tolling in extraordinary
circumstances. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).
Petitioner argues that his circumstances warrant equitable tolling because
the state court prevented him from filing a direct appeal from his conviction. It is
undisputed that petitioner failed to withdraw his plea or file a Notice of Appeal;
rather he sent a letter to the Oklahoma County court clerk stating his desire to
appeal and requesting instructions for such an appeal. The state court did not rule
on this letter as it was not a proper Notice of Appeal. Petitioner claims that this
was improper because it held him to an attorney standard rather than that of a
pro se litigant. While [a] pro se litigants pleadings are to be construed
liberally, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), petitioners pro
se status does not excuse his obligation to comply with the fundamental
requirements of civil procedure rules, cf. Ogden v. San Juan County, 32 F.3d 452,
455 (10th Cir. 1994). Petitioners letter requesting information regarding the
appeals process did not qualify as a pleading, and the state courts failure to treat
it as such was not improper.
The tolling provision set out in 28 U.S.C. 2244(d)(2) is not implicated in
this case because petitioners state post-conviction petition was filed after the
one-year limitations period set out in 28 U.S.C. 2244(d)(1) expired.
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Petitioner did not file a state post-conviction petition until January 14, 1999,
which was well after the one-year period of limitation that began to run on May 9,
1997, so there is no basis for tolling the period of limitation under 28 U.S.C.
2244(d)(2). Because the state did not impede petitioners direct appeal from his
conviction, petitioner has failed to demonstrate extraordinary circumstances
warranting equitable tolling, and we conclude that petitioners habeas application
is time-barred.
Petitioners motion to proceed in forma pauperis is GRANTED, his
application for a certificate of appealability is DENIED, and the appeal is
DISMISSED. The mandate shall issue forthwith.
Carlos F. Lucero
Circuit Judge
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