F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 13 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CHARLES ROWE,
Petitioner-Appellant,
v. No. 99-2273
TIM LEMASTER, Warden, New
Mexico State Penitentiary; STATE OF
NEW MEXICO; ROBERT PERRY,
Secretary of Corrections for the
State of New Mexico; ATTORNEY
GENERAL STATE OF NEW
MEXICO,
Respondents-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-98-1288-BB/DJS)
Submitted on the briefs:
Ron Koch and Stephen C.M. Long, Albuquerque, New Mexico, for
Petitioner-Appellant.
Patricia A. Madrid, Attorney General, Anthony Tupler, Assistant Attorney
General, Santa Fe, New Mexico, for Respondents-Appellees.
Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.
ANDERSON , Circuit Judge.
Petitioner appeals from a district court order dismissing his federal habeas
petition as untimely under the one-year limitations period established by the
Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2244(d)(1). 1
We must decide whether the interval between successive state
habeas proceedings is excluded from the limitations period when the second state
petition is designated, but never formally approved, as an amendment to the first.
We review the legal questions raised here de novo. See Adams v. LeMaster ,
___ F.3d ___, 2000 WL 1174646, at *2 (10th Cir. Aug. 18, 2000) (No. 99-2348).
For reasons stated below, we hold that the hiatus between petitioner’s state habeas
efforts is not excluded from the limitations period and, accordingly, affirm the
district court’s dismissal of this proceeding under § 2241(d)(1). 2
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2
The district court granted a certificate of appealability (COA) specifically
to permit review of the limitations issue. See 28 U.S.C. § 2253(c). The court did
not, concomitantly, address the merits of the underlying petition to determine if it
debatably stated a valid constitutional claim, as required by Slack v. McDaniel ,
120 S. Ct. 1595, 1604 (2000) for issuance of a COA on procedural grounds.
See Adams , 2000 WL 1174646, at *2. But, despite this omission, “[n]ow that the
district court has made appealable [the limitations issue] in this case by its [COA]
(continued...)
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I
The pertinent procedural facts are not in dispute. Petitioner was convicted
in 1984 of three counts of criminal sexual penetration. The New Mexico Court of
Appeals affirmed his conviction, and the New Mexico Supreme Court denied
certiorari review in 1985. For a prisoner such as petitioner, whose conviction
became final before AEDPA’s April 24, 1996 effective date, the one-year
limitation period in § 2244(d)(1) commences to run on that date. See Hoggro v.
Boone , 150 F.3d 1223, 1225 (10th Cir. 1998). Petitioner filed this federal habeas
proceeding on October 15, 1998. Thus, absent tolling of the limitation period, the
petition was eighteen months late and subject to dismissal.
Under § 2244(d)(2), “[t]he time during which a properly filed application
for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation
under [§ 2244(d)(1)].” Petitioner filed a state habeas petition on February 25,
2
(...continued)
order, we must review the merits of [that issue].” LaFevers v. Gibson , 182 F.3d
705, 710-11 (10th Cir. 1999) (post-AEDPA case noting error in district court’s
grant of COA, but following rule of Nowakowski v. Maroney , 386 U.S. 542, 543
(1967), which held “when a district court grants such a certificate [of probable
cause], the court of appeals must . . . proceed to a disposition of the appeal in
accord with its ordinary procedure”); see also United States v. Talk , 158 F.3d
1064, 1068 (10th Cir. 1998) (questioning correctness but declining to reconsider
validity of district court’s grant of COA), cert. denied , 525 U.S. 1164 (1999).
We therefore proceed to the merits of the appeal.
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1997, which was denied seventeen days later. Petitioner had thirty days in which
to seek review of that decision, but did not do so. Accordingly, the district court
concluded that this state habeas proceeding tolled the AEDPA limitations period
for a total of forty-seven days, extending the deadline until June 11, 1997. This
left the instant petition still some sixteen months late.
That brings us to the nub of this appeal. Petitioner notes he filed an
“amended” state habeas petition on February 25, 1998, the summary denial of
which became final for purposes of § 2244(d)(2) when the New Mexico Supreme
Court denied certiorari review on August 13, 1998. See Rhine v. Boone , 182 F.3d
1153, 1155 (10th Cir. 1999), cert. denied , 120 S. Ct. 808 (2000). He contends
this second proceeding not only tolled the AEDPA limitations period for the five
and one-half months it was pending, see Barnett v. LeMaster, 167 F.3d 1321,
1322-23 (10th Cir. 1999) (holding § 2244(d) period tolled during pendency of
second state habeas petition), but also retrospectively caused the twelve months
between the state habeas proceedings to be excluded as well. The latter point is
crucial–otherwise the time for seeking habeas relief expired long before the
second state habeas proceeding was even filed.
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II
None of the federal authority cited by petitioner supports the view that time
between successive state habeas petitions is somehow excluded from the AEDPA
limitations period. In particular, we note that Villegas v. Johnson , 184 F.3d 467
(5th Cir. 1999), like Barnett cited above, merely excludes the time during which
the second post-conviction proceeding is prosecuted. Indeed, the language of the
statute makes it quite clear that the limitations period is tolled only while the
“State post-conviction or other collateral review . . . is pending .” § 2244(d)(2)
(emphasis added).
However, petitioner insists that under New Mexico law his self-styled
“amended” habeas petition related back to his initial petition, resulting in a single
proceeding continuously pending until the amended petition was finally resolved.
For this contention, he relies on N.M. R. Civ. P. 1-015(C), which, like its federal
counterpart, permits an amendment to relate back to the date of an original
pleading when certain conditions are met. The defect in petitioner’s argument is
plain: the first state habeas proceeding had been reduced to a final, unappealed
judgment (which has never been set aside or vacated) long before the amended
petition was filed. Petitioner cites no state authority permitting the resurrection
of such a case through the vehicle of amendment–and the state court did not
formally approve any amendment of his first petition before summarily denying
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the second pleading. Indeed, by statute, New Mexico trial courts generally do
not retain jurisdiction more than thirty days after entry of judgment, see
N.M. Stat. Ann. § 39-1-1, and, hence, lack authority to permit amendment
thereafter. 3
See Corbin v. State Farm Ins. Co. , 788 P.2d 345, 348 (N.M. 1990).
Notwithstanding the nomenclature petitioner chose to use, he did not in reality
amend his first petition but, rather, filed a second one.
New Mexico has a distinct statutory provision under which a second suit
may be deemed a continuation of a previously dismissed case. But, this savings
statute is inapplicable when the second suit is not “commenced within six
months” of the initial disposition, N.M. Stat. Ann. § 37-1-14, or when the initial
disposition entailed a “judgment . . . rendered on the merits,” Cartwright v. Public
Serv. Co. , 362 P.2d 796, 797 (N.M. 1961). Both of these considerations would
preclude continuation here.
3
This is consistent with amendment under Fed. R. Civ. P. 15(c): “Rule 15(c)
concerns amendments to pleadings. Its plain language makes clear that it applies
not to the filing of a new complaint . . . . The [subsequent pleading] could not
plausibly be construed as an amendment to an already dismissed [case] without
tempering the plain meaning of Rule 15(c).” Morgan Distrib. Co. v. Unidynamic
Corp. , 868 F.2d 992, 994 (8th Cir. 1989) (quotation omitted); see, e.g., Seymour
v. Thornton , 79 F.3d 980, 987 (10th Cir. 1996) (reciting general rule that “once
judgment is entered, the filing of an amended complaint is not permissible until
judgment is set aside or vacated” (quotation omitted)); Lindauer v. Rogers ,
91 F.3d 1355, 1357 (9th Cir. 1996) (same).
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In sum, AEDPA’s one-year limitations period commenced on April 24,
1996, was tolled for a short time during the pendency of petitioner’s first state
habeas proceeding, and then expired in June of 1997, long before petitioner filed
his second state habeas petition. Accordingly, the district court properly held this
federal habeas proceeding, commenced in October of 1998, time-barred.
The judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
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