150 F.3d 1223 (10th Cir. 1998), 97-6383, Hoggro v. Boone

Docket Nº:97-6383.
Citation:150 F.3d 1223
Party Name:Allan HOGGRO, Petitioner-Appellant, v. Bobby BOONE, Warden, Respondents-Appellees.
Case Date:June 24, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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150 F.3d 1223 (10th Cir. 1998)

Allan HOGGRO, Petitioner-Appellant,


Bobby BOONE, Warden, Respondents-Appellees.

No. 97-6383.

United States Court of Appeals, Tenth Circuit

June 24, 1998

Rehearing and Suggestion for Rehearing

En Banc Denied July 24, 1998.

Opinion Ordered Published

July 24, 1998.

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Submitted on the briefs: [*]

Allan Hoggro, pro se, for appellant.

Alicia A. George, Assistant Attorney General for the State of Oklahoma, for appellees.

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

This appeal involves the proper application of the new one-year statute of limitations for habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 101, 110 Stat. 1321 (codified at 28 U.S.C.A. §§ 2244(d)(1)--(d)(2) (West Supp.1998)). Because the district court failed to apply the statutorily prescribed tolling provision in 28 U.S.C.A. § 2244(d)(2), we grant the appellant's request for a certificate of appealability under 28 U.S.C.A. §§ 2253(c)(1)(A) & (c)(2), and we reverse the dismissal of the appellant's habeas corpus petition.


The petitioner Allan Hoggro was serving a ten-year sentence for various state offenses on December 17, 1993, when he escaped from the state penitentiary where he was being held in Oklahoma County, Oklahoma. Upon Hoggro's recapture, the Oklahoma County District Attorney's office filed a criminal information against Hoggro charging him with escape. Before this charge was adjudicated, the Oklahoma Department of Corrections brought administrative charges against Hoggro for the escape. On February 1, 1994, prison authorities found Hoggro in violation of department regulations, ordered him to forfeit all of his accumulated good time credits (approximately 1,200 days), to be confined to disciplinary segregation for 30 days, and to be fined $15.

Eight months later, Hoggro's state criminal charges were adjudicated through a guilty plea. On October 17, 1994, the Oklahoma County District Court sentenced Hoggro to an 18-year prison term to be served concurrently with his pre-existing sentence. Hoggro did not file a direct appeal or a motion to withdraw his guilty plea.

Nevertheless, on September 26, 1996, Hoggro filed a pro se application for post-conviction relief in Oklahoma state court alleging that his conviction for escape violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the states, because

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he already was "punished" for the escape through the administrative discipline handed down by the Department of Corrections. On October 25, 1996, the state district court denied Hoggro's petition on the grounds that the administrative discipline did not constitute "punishment" subject to the Double Jeopardy Clause. Hoggro did not perfect his appeal of this decision to the Oklahoma Court of Criminal Appeals until December 9, 1996, and because his appeal was more than thirty days after the decision of the state district court, on December 26, 1996, the Court of Criminal Appeals dismissed Hoggro's appeal as untimely. On February 6, 1997, the Court of Criminal Appeals denied a motion for reconsideration that the court said it had received from Hoggro. 1

Hoggro mailed his pro se petition for federal habeas corpus relief to the Clerk of the Western District of Oklahoma on May 9, 1997, but the petition was not stamped as "filed" by the court until May 27, 1997. Hoggro's federal petition again raised the same double jeopardy argument he presented in the state courts. The magistrate judge concluded that Hoggro's May 9, 1997, mailing was not sufficient to meet the one-year limitations period of the revised habeas corpus statute. Hoggro filed an Objection to the magistrate judge's recommendation, arguing that the magistrate judge had incorrectly applied the new statute of limitation. The district court, however, adopted the magistrate's report and recommendation in toto. The district court also denied a certificate of appealability for Hoggro.

Hoggro subsequently filed a timely notice of appeal in the district court, as well as an application for a certificate of appealability from this court.


In 1996, Congress amended the long-standing prior practice in habeas corpus litigation that gave a prisoner virtually unlimited amounts of time to file a habeas petition in federal court. In the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress established a one-year period of limitations for habeas petitions. 2 See 28 U.S.C.A. § 2244(d)(1). This limitation period generally begins to run from the date on which a prisoner's direct appeal from his conviction became final. See id. The implication of this language could mean that a prisoner whose conviction became final more than a year before the AEDPA went into effect would have no avenue to bring a habeas petition because his petition would always be out of time under the new language. However,...

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