F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS FEB 22 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
HERMAN VILLANUEVA,
Petitioner-Appellant,
v.
No. 98-2196
(D.C. No. CIV-97-1442-BB)
JOE WILLIAMS, Warden, Central
(New Mexico)
New Mexico Correctional Facility;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and 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)(2); 10th Cir. R. 34.1(G). The cause 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This order and judgment is not binding precedent, except under the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, or 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.
Herman Villanueva, a pro se state prisoner, filed this petition for federal
habeas corpus relief pursuant to 28 U.S.C. § 2254. The district court adopted the
recommendation of the magistrate judge that the action be dismissed as time-
barred and denied Mr. Villanueva’s request for a certificate of appealability. Mr.
Villanueva appeals. We deny his motion for a certificate of appealability and
dismiss the appeal.
Mr. Villanueva filed his petition on November 7, 1997, and this proceeding
is therefore governed by the provisions of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996)
(AEDPA). That Act establishes a one-year limitation period for filing habeas
petitions seeking relief from state court convictions, which begins to run on the
date “the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The
AEDPA further provides that the limitation period is tolled for the period “during
which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.” Id. §
2244(d)(2).
Mr. Villanueva challenges a judgment and sentence entered on January 5,
1995, and a parole revocation and commitment order entered on March 20, 1995.
His direct appeal of those judgments became final on December 22, 1995, when
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the state supreme court dismissed his petition for certiorari. Because his
convictions became final before the AEDPA’s effective date of April 24, 1996,
the one-year limitation period began to run on that date. See Hoggro v. Boone,
150 F.3d 1223, 1225 (10th Cir. 1998).
Mr. Villanueva filed his petition for state habeas relief on April 22, 1997.
Relief was summarily denied on July 18, 1997, and Mr. Villanueva sought
reconsideration of that denial on August 7, 1997, by a motion for reconsideration
under the state rules of civil procedure. The state district court did not rule on the
request for reconsideration and Mr. Villanueva filed a petition for writ of
certiorari with the state supreme court on August 19, 1997. That court issued two
orders denying the writ on September 8 and September 19, 1997. Mr. Villanueva
filed his petition for federal habeas relief on November 7, 1997.
With this time-table in mind, we must determine whether Mr. Villanueva’s
federal petition is timely. Mr. Villanueva’s state petition was filed on April 22,
1997, within the one-year grace period that had begun to run on April 24, 1996.
That period was thus tolled while his state habeas proceedings were pending,
leaving him with two days after the completion of those proceedings within which
to file his federal habeas petition. Although the state proceedings were completed
at the latest on September 19, 1997, Mr. Villanueva did not file his federal
petition until November 7, 1997, long after the expiration of the two-day period
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remaining in his one-year grace period after the tolling had been completed.
Accordingly, we agree with the district court that his section 2254 petition was
not timely under the AEDPA.
Mr. Villanueva argues that because the state district court never ruled on
his motion for reconsideration, his state proceedings are still pending and the
limitation period applicable to his federal petition is still tolled. We are not
persuaded. Mr. Villanueva moved for reconsideration pursuant to the state rule of
civil procedure analogous to Fed. R. Civ. P. 60, which provides for relief from a
final judgment for inadvertence and excusable neglect. See N.M. R. Civ. P. 1-
060. Although the state district court never ruled on the motion, we disagree that
the state proceedings must therefore still be considered pending. The New
Mexico Supreme Court has made clear that state post-conviction habeas petitions
are not appropriately characterized as civil actions, and that such actions are
therefore not controlled by the New Mexico Rules of Civil Procedure. See
Caristo v. Sullivan, 818 P.2d 401, 406-07 (N.M. 1991). Mr. Villanueva’s motion
for reconsideration was thus not “properly filed” within the tolling provision of
section 2244(d)(2), and it therefore did not toll the running of the grace period.
Accordingly, Mr. Villanueva’s section 2254 petition was not timely.
Because Mr. Villanueva has not “made a substantial showing of the denial
of a constitutional right” as required for the issuance of a certificate of
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appealability, 28 U.S.C. § 2253(c)(2), we DENY his motion for a certificate and
DISMISS the appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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