F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 25, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
IBN O M A R-M U H A MM A D ,
Petitioner-A ppellant,
No. 06-2308
v.
(D.C. No. CIV-97-1043-M V/RLP)
(D . N.M .)
JOE W ILLIAM S, W arden,
Respondent-Appellee.
OR DER DENYING CERTIFICATE O F APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Petitioner-Appellant Ibn Omar-M uhamm ad seeks a certificate of
appealability ("CO A") to appeal the district court's denial of his Fed. R. Civ. P.
Rule 60(b)(6) motion for relief from the district court's order of December 29,
2000, dismissing his w rit of habeas corpus under 28 U.S.C. § 2254 as untimely
filed. W e discern no error in the district court's disposition and thus deny the
COA and dismiss this appeal.
I
On October 28, 1987, M r. Omar-M uhammad was convicted in Curry County
District Court, New M exico, for first-degree murder. He appealed his conviction
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in state court and, ultimately, the New M exico Supreme Court affirmed his
conviction on October 26, 1988. Seven years later, M r. Omar-M uhamm ad filed a
petition for a writ of habeas corpus in state court. M r. Omar-M uhamm ad’s initial
petition in federal court, filed under 28 U.S.C. § 2254 in the United States District
Court for the District of New M exico, was dismissed without prejudice on April 8,
1996, because the district court found that he had not yet exhausted all of his
claims in state court. On April 23, 1997, M r. Omar-M uhammad returned to state
court with a petition for writ of habeas corpus, which was denied on July 11, 1997,
and his petition for writ of certiorari to the New M exico Supreme Court was
denied on July 24, 1997.
Having now exhausted his state court remedies, on August 6, 1997, M r.
Omar-M uhammad refiled his petition in federal district court. Ultimately, on
December 29, 2000, the district court dismissed the petition, ruling that the
applicable one-year statute of limitations period for habeas petitioners in state
custody under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA ”), 28 U.S.C. § 2244(d)(1), expired on July 25, 1997 – that is, the day
after the New M exico Supreme Court finalized its disposition of his state habeas
claim. As the district court saw it, M r. Omar-M uhamm ad’s federal habeas
petition, filed on August 6, was twelve days late. The district court also denied
M r. Omar-M uhammad’s request for a COA. (Aplt. App. at 101-03.). M r. Omar-
M uhamm ad then sought a COA from us, which we denied on August 24, 2001,
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noting that his petition was not filed within AEPD A’s one-year statute of
limitations, that the mailbox rule did not apply to New M exico cases, and that
circumstances in M r. O mar-M uhammad’s case did not warrant equitable tolling.
See Omar-M uhammad v. W illiams, 17 Fed. Appx. 898 (10th Cir. Aug. 24, 2001)
(unpub.).
Approximately three years later in 2004, we decided Serrano v. W illiams,
383 F.3d 1181 (10th Cir. 2004). In that case, we held AEDPA’s one-year statute
of limitations applicable to federal habeas petitions in state custody, 28 U.S.C.
§ 2244(d)(1), should be tolled during the 15-day period allowed under state law
for filing a petition for rehearing with the New M exico Supreme Court following
its denial of a petition for writ of certiorari. Id. at 1187.
Nearly two years after Serrano, on August 29, 2006, M r. Omar-M uhamm ad
filed a motion pursuant to Fed. R. Civ. P. 60(b)(6) with the United States District
Court for the D istrict of New M exico. (Aplt. App. at 107-124). In his motion, M r.
Omar-M uhammad claimed that, based on our decision in Serrano, the dismissal of
his federal habeas petition in 1997 was improper. Specifically, he argued that, had
the district court tolled the AEDPA limitations period for the 15-day period
allowed under Serrano, his 1997 federal habeas petition would have been 3 days
early rather than 12 days late. That is, according to M r. Omar-M uhamm ad, the
New M exico Supreme Court denied certiorari on July 24, 1997, and pre-Serrano
the AEDPA limitations period expired the next day, July 25. But, post-Serrano,
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the limitations period would have been tolled for 15 days after July 24, or until
August 9.
The district court denied M r. Omar-M uhamm ad’s Rule 60(b)(6) motion on
September 25, 2006. It pointed to Gonzalez v. Crosby, 545 U.S. 524, 535 (2005),
in which the Supreme Court held that an appellate court opinion liberalizing the
calculation of a limitations period but decided after the final dismissal of a habeas
petition as untimely does not constitute “extraordinary circumstances” sufficient to
“provide grounds for reconsideration” under Rule 60(b)(6). Dist. Ct. Order of
Sept. 25, 2006, at 3 (Aplt. App. at 125-128.). M r. Omar-M uhammad then sought a
COA from the district court, but the district court has not ruled on the request for a
COA within 30 days and so we must deem the request denied. See 10th Cir. R.
22.1(c). Having failed to persuade the district court, M r. Omar-M uhamm ad now
seeks a COA in this court.
II
W e may issue a CO A only if the petitioner makes “a substantial showing of
the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). To do so, a
petitioner must “show[], 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 reasons would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (emphasis
added). W e do not believe that M r. Omar-M uhammad has met this burden. In
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order for M r. Omar-M uhammad to obtain relief under Rule 60(b)(6), he must
show, inter alia, “extraordinary circumstances” which, the Supreme Court has
indicated “will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535
(citations omitted). Even more problematically for M r. Omar-M uhamm ad, the
Supreme Court in Gonzalez rejected a claim for Rule 60(b)(6) relief involving
what petitioner himself concedes is “a fact situation very similar to that in [his]
case.” Petitioner’s Br. at 13.
Some time after M r. Gonzalez’s habeas claim was dismissed as untimely,
the Supreme Court announced a new tolling rule in Artuz v. Bennett, 531 U.S. 4, 8
(2000), that would have, had it been in force earlier, permitted M r. Gonzalez to
pursue his habeas petition. On the basis of the Artuz ruling, M r. Gonzalez filed a
Rule 60(b)(6) motion seeking to reopen his habeas petition. Ultimately, the
Supreme Court ruled that its new decision in Artuz did not create the sort of
“extraordinary circumstances” required by Rule 60(b)(6) to reopen M r. Gonzalez’s
case. In denying relief, the Supreme Court explained that “[i]t is hardly
extraordinary that subsequently, after petitioner’s case was no longer pending, this
Court arrived at a different interpretation [of a statutory limitations period] . . . .
[N]ot every interpretation of the . . . statutes setting forth the requirements for
habeas provides cause for reopening cases long since final.” Gonzalez, 545 U.S.
at 537.
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W e see no way in which we might arrive at a different result in this case.
The Supreme Court held that its new limitations period ruling in Artuz did not
supply the sort of “extraordinary circumstance” necessary for retroactively
reopening final dispositions of habeas petitions such as M r. Gonzalez’s, and one
need only substitute Serrano for Artuz in that equation to see how we are
compelled to deny M r. Omar-M uhammad’s requested relief. M r. Omar-
M uhammad acknowledges the great similarities between his case and M r.
Gonzalez’s, conceding that Gonzalez “[a]t first blush . . . would appear to
definitively resolve” his appeal, Petitioner’s Br. at 14, but asks us to distinguish
Gonzalez on the basis that Serrano corrected what had been a clearly erroneous
interpretation of AEDPA while Artuz decided a harder, closer limitations question.
As M r. Omar-M uhammad puts it, this case presents the requisite “extraordinary
circumstance” under Rule 60(b)(6) because of the obvious incorrectness of the
district court’s limitations analysis in 2000 corrected by Serrano in 2004.
Even if we felt able to disregard the Supreme Court’s guidance in Gonzalez
on the basis of such a fine distinction, we are unable to accept the premise on
which M r. Omar-M uhammad’s argument is based. That is, we cannot say, as M r.
Omar-M uhammad would have us, that it was obvious before Serrano to all com ers
that a 15-day tolling period under AEDPA was required after a final disposition by
the New M exico Supreme Court.
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By way of example, M r. Omar-M uhamm ad, represented by counsel, never
noted such an allegedly obvious error at any time in the more than seven years
between the filing of his federal habeas petition on August 6, 1997, and our
decision in Serrano in September 2004, even while he did raise many other tolling
arguments. Neither did any of the many judges who reviewed his petition notice
the argument he now seeks to raise. But, perhaps of even greater significance still,
the district court’s interpretation of AEDPA was at the time not obviously
foreclosed by established Tenth Circuit law as M r. Omar-M uhammad suggests. In
fact, as the Serrano opinion makes clear, there was no established Tenth Circuit
law on this specific topic at the time the district court ruled. Indeed, in Serrano
we relied almost exclusively on our prior holding in Gibson v. Klinger, 232 F.3d
799 (2000), which itself w as decided after the district court dismissed M r. Omar-
M uhamm ad’s habeas petition, 1 and which expressly recognized that it addressed a
then-unresolved question of law in the Tenth Circuit. See id. at 803-04 (“In Row e
v. LeM aster, [225 F.3d 1173, 1174 (10th Cir. 2000),] . . . [b]ecause we focused our
inquiry on another tolling question, we did not specifically analyze . . . [if],
regardless of whether a petitioner actually appeals a denial of a post-conviction
application, the limitations period is tolled during the period in which the
1
Similarly, two of the three out-of-circuit cases cited as supporting
authority in Serrano were decided after the district court dismissed M r. Omar-
M uhammad’s habeas petition. See Serrano, 383 F.3d at 1185 (citing Jones v.
Nagle, 349 F.3d 1305, 1308 (11th Cir. 2003); Williams v. Bruton, 299 F.3d 981,
983-84 (8th Cir. 2002); Swartz v. M eyers, 204 F.3d 417, 421 (3d Cir. 2000)).
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petitioner could have sought an appeal under state law.”). M oreover, the
Serrano decision was not reached solely under Tenth Circuit precedent, but also
depended on an interpretation of New M exico law and the New M exico Rules of
Appellate Procedure, see Serrano, 383 F.3d at 1187, neither of which was raised in
this context before the district court in 2000. For all these reasons, we are unable
to agree with M r. Omar-M uhammad that the district court’s interpretation in 2000
of an (uncontested) aspect of the AEDPA limitations period was unreasonable at
the time, let alone contrary to established Tenth Circuit law.
* * *
As did the district court, we find that we are precluded from affording M r.
Omar-M uhammad the relief he seeks by virtue of the Supreme Court’s decision in
Gonzalez. For that reason, we deny his application for a COA and dismiss this
appeal.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
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