                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    January 31, 2007
                   UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 RO NNIE TH OM AS,

       Petitioner-A ppellant,
 v.
                                                        No. 06-2195
 ROBERT A. ULIBARRI, W arden,                 (D.C. No. CIV-04-0125 JH/LAM )
 Southern New M exico Correctional                       (D .N.M .)
 Facility; A TTO RN EY G EN ER AL
 FO R TH E STA TE O F N EW M EXICO,

       Respondents-Appellees.



                                     OR DER


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Petitioner-Appellant Ronnie Thomas, proceeding pro se, seeks leave to

appeal the denial of his petition for a writ of habeas corpus. After M r. Thomas

was convicted in New M exico state court of drug trafficking, conspiracy, and

contributing to the delinquency of a minor, and the state appellate courts affirmed

his conviction on direct appeal, he filed an unsuccessful state habeas petition and

has now turned to the federal courts for relief. The district court below
exhaustively reviewed and considered his arguments, 1 discarding some as

conclusory and finding the remainder lacking in legal merit. W e agree.

      Prior to appealing the dismissal of a petition for writ of habeas corpus

sought under 28 U.S.C. § 2254, federal law requires the petitioner first to obtain a

certificate of appealability (“COA”). Id. § 2253(c)(1). This requirement is

jurisdictional. M iller-El v. Cockrell, 537 U.S. 322, 336 (2003); M ay v. W orkman,

      1
        W e note only in passing what appears to be a technical, though in this case
harmless, error in the district court’s analysis. Despite noting that M r. Thomas’s
petition was filed after the expiration of the one-year statute of limitations
imposed by 28 U.S.C. § 2244(d)(1), even after accounting for the § 2244(d)(2)
tolling of the limitations period during the pendency of M r. Thomas’s state post-
conviction and collateral attacks on his conviction, the district court denied the
respondents’ motion to dismiss on statute of limitations grounds, holding they
waived the time-bar argument by their failure to raise it in their first responsive
pleading. In so holding, the district court relied on cases from the Sixth and
Ninth Circuits and our unpublished decision in Davis v. LeM aster, 216 F.3d 1086,
2000 W L 702408 (10th Cir. 2000), for the proposition that a respondent’s failure
to raise the statute of limitations in its answer constitutes an irrevocable waiver of
the argument. Subsequently, the Supreme Court resolved a circuit split on this
issue by abrogating the cases on which the district court relied. Day v.
M cDonough, 126 S.Ct. 1675 (2006). A statute of limitations defense is not
jurisdictional, the Court held, and “district courts are permitted, but not obligated,
to consider, sua sponte, the timeliness of a state prisoner’s habeas petition.” Id.
at 1681, 1684. Because the district court must, if raising the issue sua sponte,
“assure itself that the petitioner is not significantly prejudiced . . . and determine
whether the interests of justice would be better served by addressing the merits”
of the petition, id. at 1684, we believe that the district court is not obligated to
disregard these concerns and address the time bar merely because the respondent
raises the issue in an untimely motion. Thus, rather than holding itself bound by
the respondents’ w aiver, the district court below should have exercised its
discretion to determine whether to address the statute of limitations defense.
Nonetheless, because M r. Thomas does not appeal the point, because we detect no
abuse of discretion in the district court’s decision, and because the error is
harmless to the respondents here in any event, we need not address the point
further.

                                         -2-
339 F.3d 1236, 1237 (10th Cir. 2003). The district court denied M r. Thomas’s

request for COA below, which he has renewed in this court.

      To obtain a CO A under § 2253(c), a habeas prisoner must m ake a
      substantial showing of the denial of a constitutional right, a
      demonstration that . . . includes showing that reasonable jurists could
      debate whether (or, for that matter, agree that) the petition should have
      been resolved in a different manner or that the issues presented w ere
      “adequate to deserve encouragement to proceed further.”

Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463

U.S. 880, 893 (1983)). W hen determining whether COA should issue, we do not

make a definitive inquiry under standards prescribed by the Antiterrorism and

Effective Death Penalty Act of 1996, because the COA review is distinct from the

merits review of the petition. M iller-El, 537 U.S. at 342. Our only question here

“is the debatability of the underlying constitutional claim, not the resolution of

that debate.” Id.

      Even construing liberally M r. Thomas’s opening brief and application for

COA, he raises no debatable argument that he is imprisoned in violation of his

constitutional rights or that the district court erred in its consideration of his

petition. Thus, because M r. Thomas has failed to make a “substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we DENY his




                                          -3-
application for a certificate of appealability and DISM ISS his appeal.




                                       ENTERED FOR THE COURT



                                       David M . Ebel
                                       Circuit Judge




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