F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 27 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSE DIAZ,
Petitioner-Appellant,
v. No. 97-4158
(D.C. No. 97-CV-357)
HANK GALETKA, Warden, (D. Utah)
Utah State Prison,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON , BARRETT , and TACHA , Circuit Judges.
After examining appellant’s brief and the 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); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
On May 7, 1997, petitioner filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 seeking relief from a 1992 Utah state court
conviction. The magistrate judge to whom the federal petition was referred
recommended that it be dismissed for failure to comply with the one-year
limitation period provided in 28 U.S.C. § 2244(d)(1), which was enacted as part
of the Antiterrorism and Effective Death Penalty Act of 1996. Petitioner filed
objections to the recommendation, raising several constitutional challenges to the
application of the limitations period. Petitioner also argued that commencement
of the limitations period should be delayed pursuant to § 2244(d)(1)(B) because
an unconstitutional state-created impediment prevented him from filing his habeas
petition. The district court rejected petitioner’s constitutional challenges to the
statute of limitations, but did not directly address his argument about the delayed
commencement of the limitations period. The court dismissed the action as
untimely.
Before petitioner can proceed on appeal, he must obtain a certificate of
appealability from this court, which requires “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Our review of this matter was
made more difficult by the district court’s failure to address petitioner’s argument
about the commencement date of the limitations period under § 2244(d)(1)(B).
Nonetheless, our thorough review of the record and petitioner’s appellate brief
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leads us to conclude that petitioner has not shown the district court’s disposition
of his habeas petition to be debatable, reasonably subject to a different outcome
on appeal, or otherwise deserving of further proceedings. See Gallagher v.
Hannigan , 24 F.3d 68, 68 (10th Cir. 1994) (discussing how to make substantial
showing of denial of constitutional right).
Therefore, a certificate of appealability is DENIED, and the appeal is
DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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