F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                            JUL 6 1999
                     UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                     PATRICK FISHER
                                                                                Clerk


 CHARLES LEE GABLE,

          Petitioner - Appellant,
                                                        No. 99-5061
 v.
                                                (D.C. No. 97-CV-1004-H(J))
                                               (Northern District of Oklahoma)
 RITA MAXWELL, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Pro se petitioner Charles Lee Gable seeks a certificate of appealability to

challenge the district court’s dismissal of his petition for writ of habeas corpus as

time-barred, pursuant to 28 U.S.C. § 2244(d). Because we conclude that Gable

has not “made a substantial showing of the denial of a constitutional right,” we

decline to issue a certificate of appealability. 28 U.S.C. § 2253(c)(2).




      *
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Following a plea of guilty to state firearm and drug paraphernalia charges,

Gable was sentenced, on March 27, 1996, to ten years of imprisonment. Gable

did not move to withdraw his plea or file a direct appeal; his first challenge to his

conviction and sentence was an application for state post-conviction relief, filed

March 20, 1997. The state district court denied relief on July 18, 1997. Gable

did not file an appeal in the Oklahoma Court of Criminal Appeals (“OCCA”) until

August 27, 1997, and the OCCA dismissed his appeal as untimely. Gable filed

for habeas relief on November 10, 1997.

      The district court found Gable’s petition untimely under 28 U.S.C.

§ 2244(d). This provision of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), effective April 24, 1996, 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). It

also provides for tolling of the time limit while “a properly filed application for

State post-conviction or other collateral review” is pending in State court. 28

U.S.C. § 2244(d)(2).

      To avoid retroactivity problems, we have construed the limitation period of

§ 2244(d) to run from the AEDPA’s effective date, April 24, 1996, in the case of

prisoners whose convictions became final prior to that date.   See Hoggro v.

Boone , 

, 1225-26 (10th Cir. 1998). Furthermore, we have


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recognized that the state court tolling provision of § 2244(d)(2) applies to this

one-year grace period.    See 

         The district court concluded that, because Gable did not move to withdraw

his guilty plea within ten days of his sentence, the sentence became final under

Oklahoma law at the end of that ten-day period, or April 8, 1996, pursuant to Rule

4.2(A), Rules of the Court of Criminal Appeals. Therefore, Gable’s one-year

period under AEDPA began on April 24, 1996.        See Hoggro , 150 F.3d at 1225-26.

Gable filed his habeas petition some 566 days after April 24, 1996. Pursuant to

28 U.S.C. § 2244(d)(2), the district court subtracted the 120 days from March 20,

1997, to July 18, 1997, when Gable’s petition for post-conviction relief was

pending in state court, but found that the resulting elapsed time, 446 days, still

fell well beyond the one-year AEDPA limitation period. The district court

declined to subtract the time between the filing and denial of Gable’s appeal of

the state district court’s ruling, on the grounds that it was untimely and therefore

not “properly filed” under Oklahoma law. 28 U.S.C. § 2244(d)(2). The court

noted, however, that even if Gable were credited with that time, his habeas

petition would remain untimely. The district court rejected Gable’s arguments for

additional equitable tolling under   Miller v. Marr , 

, 978 (10th Cir.

1998).




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      Gable apparently argues to us that the OCCA’s order dismissing his appeal

of the denial of post-conviction relief was invalid, and therefore “the petitioner’s

application for post conviction is still a pending case in the state district court.”

Appellant’s Br. at II-A. Gable’s argument that the OCCA’s order was invalid is

entirely without merit. Moreover, even if Gable’s argument were correct and his

state post-conviction proceeding remained pending, he would then not have

exhausted his state remedies, and his habeas petition would be subject to

dismissal on that ground.   See 28 U.S.C. § 2254(b)(1)(A).

      Gable also argues that the district court should have equitably tolled the

one-year limitation period. We agree with the district court’s conclusion that

Gable’s assertions of inadequate law library facilities and ignorance of AEDPA

fail to demonstrate cause and prejudice for his untimely filing so as to justify

equitable tolling of the AEDPA limitation period.

      Moreover, we reject Gable’s argument that the alleged failure of his

sentence to conform to the plea agreement could not have been discovered until

November of 1996, thereby triggering a later starting date for the limitation

period under 28 U.S.C. § 2244(d)(1)(D). Gable apparently contends that the State

breached his plea agreement. However, the factual predicate of this claim was

clearly discoverable at the time of the sentence, and therefore does not change the

relevant date for calculating the AEDPA limitation period.


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       We conclude that Gable has made no showing of the denial of a

constitutional right and therefore   DENY a certificate of appealability under 28

U.S.C. § 2253; this appeal is    DISMISSED .

       The mandate shall issue forthwith.

                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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