                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                      February 15, 2006
                                    TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 CHARLES EDWARD WESLEY,

          Petitioner - Appellant,
                                                       No. 05-2179
 v.                                                (D.C. No. CIV-04-17)
                                                         (D.N.M.)
 PATRICK W. SNEDEKER, Warden,
 Lea County Correctional Facility,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Charles Edward Wesley, an inmate appearing pro se, sought a certificate of

appealability (“COA”) to appeal from the district court’s denial of his habeas

petition filed pursuant to 28 U.S.C. § 2254. The federal magistrate judge issued

proposed findings and a recommended disposition suggesting that the petition be


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
denied on the merits, but rejecting the State’s argument that the petition was time-

barred. Both parties objected. The district court determined that in fact the

petition was time barred, and alternatively, that Mr. Wesley’s claims regarding

ineffective assistance of counsel should be dismissed on the merits and the

remaining claims be dismissed as procedurally defaulted. R. Doc. 24 at 1-2. Mr.

Wesley also filed a motion with this court, contending that his Fifth Amendment

rights and safety were being compromised by requiring him to enroll in a sex

offender program in prison.

      We denied a COA on the grounds that Mr. Wesley’s federal habeas petition

was time barred. Wesley v. Snedeker, 2005 WL 3485970 at *2 (10th Cir. Dec.

21, 2005). We also denied his motion concerning his enrollment in a sex offender

program in prison. Id. Although the State has consistently maintained that Mr.

Wesley did not seek certiorari from the New Mexico Supreme Court after his

direct appeal to the New Mexico Court of Appeals, R. Doc. 12 at 3; R. Doc. 11 at

2; R. Doc. 20 at 2, and the magistrate judge so determined, R. Doc. 19 at 4, this is

incorrect. In seeking rehearing of our order, Mr. Wesley provided documents

indicating that a certiorari petition in his direct appeal was filed with the New

Mexico Supreme Court on November 20, 2000, and denied on December 29,

2000. Thus, Mr. Wesley’s conviction became final ninety days thereafter, on

March 29, 2001. See S. Ct. R. 13(1); Locke v. Saffle, 237 F.3d 1269, 1271-73


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(10th Cir. 2001).

      Some 264 days later, on December 18, 2001, he filed a petition for a writ of

habeas corpus in state district court. R. Doc. 12, Ex. G. The state district court

denied the petition on August 1, 2003. R. Doc. 12, Ex J. Mr. Wesley sought

certiorari review of the denial of his habeas petition, which was denied by the

New Mexico Supreme Court on October 1, 2003. R. Doc. 12, Ex. N. The

limitations period was tolled from December 18, 2001 until October 1, 2003 for

Mr. Wesley’s state post-conviction proceedings. See Serrano v. Williams, 383

F.3d 1181, 1185 (10th Cir. 2004). Ninety-seven days later, Mr. Wesley filed the

instant petition in federal court on January 6, 2004. R. Doc. 1. The petition was

timely. Moreover, the finding that Mr. Wesley is now procedurally barred from

raising the claims raised in his direct appeal for failure to exhaust appears to be

incorrect. R. Doc. 19 at 4.

      On rehearing of Mr. Wesley’s application for a COA, we granted a COA,

and ordered the State to respond to Mr. Wesley’s brief on appeal and our proposal

to remand so the district court may reevaluate the entire petition. The State has

now responded, forthrightly explaining how the certiorari petition was missed by

the New Mexico Supreme Court Clerk’s Office notwithstanding the diligence of

the State. The State concedes the Mr. Wesley’s habeas petition is timely. State’s

Resp. at 4. Although the State does not oppose a limited remand for the district


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court to reconsider the issues of exhaustion and procedural bar in light of the

certiorari petition on state direct appeal, the State urges the court to affirm the

dismissal of the ineffective assistance claims. Id. at 7. We think it best if the

district court on remand first address the claims that have been exhausted and are

not procedurally barred, and then proceed with the ineffective assistance analysis.

The analysis of the former may (or may not) affect the analysis of the ineffective

assistance claims, but in an abundance of caution, the entire matter should be

resolved.

      REVERSED and REMANDED. We reaffirm our denial of Mr. Wesley’s

motion concerning his enrollment in a sex offender program in prison.

                                        Entered for the Court



                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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