F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 26 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
JESUS F. RODRIGUEZ,
Petitioner - Appellant, No. 02-1242
v. (D.C. No. 01-Z-749)
RICK SOARES and ATTORNEY (D. Colorado)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , and HARTZ , 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 case is
therefore ordered submitted without oral argument.
On March 29, 2002, the petitioner pro se, Jesus F. Rodriguez, filed an
application for a writ of habeas corpus under 28 U.S.C. § 2254. Mr. Rodriguez
This order and judgment is not binding precedent, except under the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.
was convicted of cocaine offenses in Colorado state court in 1993, and he is now
serving his sentence in the custody of the Colorado Department of Corrections.
In his habeas petition, Mr. Rodriguez argued that he received ineffective
assistance of counsel during the trial that resulted in his conviction.
In an order entered May 13, 2002, the district court denied Mr. Rodriguez’s
application, finding that the one-year limitation period set forth in 28 U.S.C.
§ 2244(d) barred the action. Mr. Rodriguez submitted a notice of appeal, and he
moved the district court for a certificate of appealability (COA) and for leave to
proceed in forma pauperis on appeal. The district court denied these motions.
Mr. Rodriguez now seeks a COA from this court, so that he may appeal the
district court’s decision as to his habeas corpus petition, as well as leave to
proceed in forma pauperis.
In concluding that Mr. Rodriguez’s habeas petition was untimely under 28
U.S.C. § 2244(d), the district court relied on a procedural ground to dismiss the
action. The United States Supreme Court has instructed that “[w]hen the district
court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural
-2-
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Slack court went on
to note that “[w]here a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the petitioner
should be allowed to proceed further.” Id.
In this case the district court’s analysis demonstrated that the one-year
limitation period prescribed in 28 U.S.C. § 2244(d) created “a plain procedural
bar” to Mr. Rodriguez’s action. The limitation period began to run on “the date
on which 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
Colorado Supreme Court denied Mr. Rodriguez’s petition for certiorari on direct
appeal on October 21, 1996. As the district court pointed out, Mr. Rodriguez’s
conviction thus became final on January 21, 1997, when the 90-day period for
seeking certiorari from the United States Supreme Court expired. Rule 13.1,
Rules of the Supreme Court.
Section 2244(d)(2) provides that the one-year limitation period is tolled
while “a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.” The district
court noted that on October 16, 1997, Mr. Rodriguez sought post-conviction
review in state court. On October 29, 2001, the Colorado Supreme Court denied
-3-
Mr. Rodriguez’s petition for certiorari as to post-conviction review, and on
November 5, 2001, the Colorado Court of Appeals issued its mandate. In
assessing whether Mr. Rodriguez’s habeas petition was time-barred, the district
court excluded the period between October 16, 1997 and October 29, 2001.
Given that only seven days elapsed between the date of the Colorado Supreme
Court’s denial of certiorari and the date of the mandate, the district court’s
ultimate determination concerning the timeliness of Mr. Rodriguez’s habeas
petition would have been the same regardless of which date was used to mark the
end of Mr. Rodriguez’s post-conviction proceedings in state court.
The time that counted against the limitation period set forth in 28 U.S.C.
§ 2244(d)(2) consisted of (1) the time period between the date on which
Mr. Rodriguez’s conviction became final and the date on which he initiated post-
conviction proceedings and (2) the time period between the date when
Mr. Rodriguez’s post-conviction proceedings ended and the date on which he
filed his habeas petition in federal court. Added together, these time periods
exceeded one year. The district court indicated that Mr. Rodriguez had failed to
show any extraordinary circumstances that would support equitably tolling the
limitation period. Although Mr. Rodriguez alleges that the district court’s
computations relating to the limitation period are inaccurate, he provides no
reasoning in support of his assertion.
-4-
Having carefully considered Mr. Rodriguez’s brief and the appellate record,
we agree with the district court’s conclusion that Mr. Rodriguez’s petition for
habeas corpus is time-barred. Therefore, for substantially the same reasons given
by the district court, we DENY Mr. Rodriguez’s motion for a COA, DENY his
motion to proceed in forma pauperis, and DISMISS this appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
-5-