                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 14 2003
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

    HERMAN J. SENA,

                Petitioner-Appellant,

    v.                                                    No. 02-2200

    NEW MEXICO CORRECTIONS
    DEPARTMENT; ATTORNEY
    GENERAL FOR THE STATE OF
    NEW MEXICO; STATE OF NEW
    MEXICO,

                Respondents-Appellees.




                                        ORDER


Before TACHA , Chief Judge, HARTZ , and O’BRIEN , Circuit Judges.



         Herman J. Sena, appearing pro se, seeks a certificate of appealability

(COA) to appeal the district court’s order dismissing his petition for writ of

habeas corpus under 28 U.S.C. § 2254. We deny his request for a COA.       1




1
       We previously entered an order directing Sena to show cause why this
appeal should not be dismissed on the ground that his notice of appeal was filed
more than thirty days after the entry of judgment by the district court. Having
considered Sena’s response to the show cause order, we conclude that the letter
the district court received from Sena on July 1, 2002 provided the notice required
                                                                       (continued...)
       In 1985, Sena was convicted by a jury in a New Mexico district court of

first degree murder, aggravated burglary, and tampering with evidence, and he

was sentenced to life imprisonment. In 1987, the New Mexico Supreme Court

affirmed his convictions on direct appeal. In March 2001, Sena filed a petition

for writ of habeas corpus in the state district court. The state district court

dismissed the petition, and the New Mexico Supreme Court denied Sena’s petition

for writ of certiorari in January 2002.

       In February 2002, Sena filed his § 2254 petition in the United States

District Court for the District of New Mexico, claiming that his federal due

process rights had been violated because the state district court’s “Judgment,

Sentence and Commitment” order (sentencing order),           see R., Doc. 2, Ex. A, did

not reflect the court’s “ ruling ” 2 at his sentencing hearing that “       with total good

time defendant could be eligible for parole in as little as fifteen years         ,” id., Doc.

1 at 2. Sena further alleged that, as a result of this omission in the sentencing

order, the New Mexico Corrections Department has refused to allow him to use


1
 (...continued)
by Fed. R. App. P. 3(c)(1). Because the letter was filed within the time period
specified by Fed. R. App. P. 4(a)(1), the letter was effective as a timely notice of
appeal. See Smith v. Barry , 502 U.S. 244, 248-49 (1992).
2
      The record does not support Sena’s claim that the state district court made a
“ruling” at the sentencing hearing regarding good time credits. However, even if
we assume that the court made the ruling alleged by Sena, there are still no
grounds for granting him a COA.

                                             -2-
earned good time credits to reduce the mandatory thirty-year sentence he is

required to serve under N.M. Stat. Ann. § 31-21-10(A) before becoming eligible

for parole. As a remedy, Sena requested that the federal district court: (1) “order

that his [sentencing order] be amended”; and (2) “order his good time to be

deducted from the end of his thirty (30) year life term.”         Id. at 9.

       The magistrate judge recommended that Sena’s § 2254 petition be

dismissed on the grounds that it was barred by the one-year statute of limitations

in 28 U.S.C. § 2244(d)(1) and failed to state a claim upon which relief could be

granted. The district court adopted the magistrate judge’s recommendation and

dismissed Sena’s petition. This appeal followed.

       Issuance of a COA is jurisdictional.          Miller-El v. Cockrell , 123 S. Ct. 1029,

1039 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a

district court has dismissed a habeas petition on procedural grounds, a prisoner

must also show that “jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.”         Slack v. McDaniel , 529 U.S. 473, 484

(2000). After carefully reviewing the record, we conclude that the district court’s

procedural ruling as to the untimeliness of Sena’s petition would not be debatable

among jurists of reason.




                                               -3-
      Sena’s convictions became final before the April 24, 1996 effective date of

the Antiterrorism and Effective Death Penalty Act (AEDPA). Consequently,

under 28 U.S.C. § 2244(d)(1), Sena was required to file his § 2254 petition on or

before April 24, 1997.   See Fisher v. Gibson , 262 F.3d 1135, 1142 (10th Cir.

2001) (holding that “[w]here a conviction became final before AEDPA took

effect, . . . the one year limitation period for a federal habeas petition starts on

AEDPA’s effective date”),    cert. denied , 535 U.S. 1034 (2002);   United States v.

Hurst , 322 F.3d 1256, 1261 (10th Cir. 2003) (holding that “a [habeas petition]

presented to the court on the anniversary date of a triggering event is within the

‘1-year period of limitation’ set out in . . . § 2244(d)(1)”). Further, the one-year

limitations period cannot be tolled under § 2244(d)(2) for the time Sena spent in

state post-conviction proceedings because his state-court habeas petition was “not

filed until after April 24, 1997, the end of the limitations period for convictions,

like [Sena’s], which became final before the effective date of AEDPA.”        Fisher ,

262 F.3d at 1143.

      In the proceedings before the magistrate judge, Sena did not argue that the

one-year limitations period should be extended beyond April 24, 1997 based on

any of the grounds set forth in § 2244(d)(1)(B)-(D). Likewise, he did not argue

that the limitations period should be tolled on equitable grounds. Instead, Sena

argued that his due process claim was not “mature” until he had actually earned


                                           -4-
enough good time credits to become eligible for a release from prison, and he

claimed that this had not occurred until the year preceding the filing of his

petition. See R., Doc. 16 at 3-4.

      We disagree. In his § 2254 petition, Sena challenged the validity of the

state district court’s sentencing order, and he alleged that the due process

violation occurred in 1985 when the allegedly invalid sentencing order was

entered. Id., Doc. 1 at 2-3. Similarly, in his answer to respondents’ answer to his

§ 2254 petition, Sena claimed that his incarceration was unlawful because he had

been imprisoned “pursuant to an     invalid [sentencing] order.”   Id. , Doc. 16 at 1.

Accordingly, Sena’s due process claim was ripe in 1985 when the state district

court entered the sentencing order. Thus, we conclude that jurists of reason

would not debate the correctness of the magistrate judge’s determination that

Sena’s § 2254 petition is time barred because he failed to file it on or before April

24, 1997.

      In his objections to the magistrate judge’s proposed findings and

recommended disposition and in his opening brief in this appeal, Sena claims that

his § 2254 petition was timely filed because: (1) the Corrections Department has

been awarding him good time credits since 1985; and (2) he did not discover that

the Corrections Department was going to refuse to apply his good time credits to

reduce his mandatory thirty-year sentence under N.M. Stat. Ann. § 31-21-10(A)


                                           -5-
until February or March 2001 when he first learned of this fact from his prison

case manager. Id. , Doc. 18 at 3-4; Aplt. Br. at II, X-XI. Even if we give Sena the

benefit of these allegations and construe his habeas petition to be a timely

challenge to the execution of his sentence under 28 U.S.C. § 2241, Sena has

failed to make a substantial showing of the denial of a constitutional right.

      At the time of his sentencing in 1985, N.M. Stat. Ann. § 31-21-10(A)

provided that “[a]n inmate of an institution who was sentenced to life

imprisonment as the result of the commission of a capital felony becomes eligible

for a parole hearing after he has served thirty years of his sentence.” N.M. Stat.

Ann. § 31-21-10(A) (1985 Cum. Supp.). Notably, § 31-21-10(A) did not address

whether an inmate sentenced to life imprisonment could earn good time credits

and have the credits applied to reduce the mandatory thirty-year sentence. This

omission was significant because a separate statute provided that “[a]ny inmate

confined in the penitentiary of New Mexico . . . may be awarded a deduction

of not more than ten days’ meritorious good time per month based on good

conduct . . . .” N.M. Stat. Ann. § 33-2-34(A) (1985 Cum. Supp.).

      In 1989, the New Mexico Supreme Court issued an opinion making it clear

that § 31-21-10(A) takes precedence over § 33-2-34(A), and that an inmate

sentenced to life imprisonment is not entitled to have the mandatory thirty-year

sentence reduced based on good time credits.    See Martinez v. New Mexico , 772


                                          -6-
P.2d 1305, 1305-06 (N.M. 1989);    3
                                       accord New Mexico v. Garcia   , 837 P.2d 862,

865 n.5 (N.M. 1992). We therefore agree with the magistrate judge that Sena has

no basis for asserting a federal due process claim based on the refusal of the

Corrections Department to release him before the end of the thirty-year period,

and this is the case regardless of whether the Corrections Department previously

had a practice of misapplying § 31-21-10(A).      Cf. Stephens v. Thomas , 19 F.3d

498, 500-01 (10th Cir. 1994) (construing prior New Mexico statute enacted in

1955 that required inmates sentenced to life imprisonment to serve a mandatory

ten-year sentence before becoming eligible for parole, and holding that

“revocation of good time credits from a life term prisoner who has served less

than ten years of his sentence . . . does not implicate the Due Process Clause,”

regardless of the Corrections Department’s “previous practice of misapplying the

law”).




3
       In Martinez , 772 P.2d at 1305-06, the New Mexico Supreme Court was
addressing the 1987 versions of §§ 31-21-10(A) and 33-2-34(A).      See N.M. Stat.
Ann. §§ 31-21-10(A) and 33-2-34(A) (1987 Repl. Pamp.). However, for purposes
of this case, the 1985 and 1987 versions of the statues are identical.

                                            -7-
The application for a COA is DENIED and this matter is DISMISSED.


                                         Entered for the Court



                                         Deanell Reece Tacha
                                         Chief Judge




                               -8-
