                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          May 2, 2006
                           FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court


    DAVID B. SIMMONS,

                Petitioner-Appellant,

    v.                                                 No. 05-3379
                                                (D.C. No. 03-CV-3302-SAC)
    L. E. BRUCE, Warden, Hutchinson                      (D. Kan.)
    Correctional Facility; ATTORNEY
    GENERAL OF THE STATE OF
    KANSAS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


         David B. Simmons, a Kansas state prisoner proceeding pro se, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas relief. The

district court determined that Mr. Simmons failed to file his habeas petition


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The 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.
within the applicable one-year statute of limitations, 28 U.S.C. § 2244(d)(1), and

alternatively, that Mr. Simmons’s claims were procedurally defaulted. Thereafter,

the district court declined to issue Mr. Simmons a certificate of appealability

(COA), but it granted him leave to proceed on appeal in forma pauperis.

Mr. Simmons then filed in this court an application for a COA, asserting that his

habeas petition was not time-barred and his claims were not procedurally

defaulted. This court granted Mr. Simmons a COA to consider these two issues.

See 28 U.S.C. § 2253(c).

      Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a). We review

de novo the district court’s dismissal of a federal habeas petition as time-barred.

Serrano v. Williams, 383 F.3d 1181, 1184 (10th Cir. 2004). We likewise review

de novo the district court’s dismissal of a federal habeas petition based on

procedural default. Anderson v. Attorney Gen. of Kan., 342 F.3d 1140, 1143

(10th Cir. 2003). Because Mr. Simmons is pro se, we construe his pleadings

liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).

      In a December 12, 2005, motion to supplement his opening brief,

Mr. Simmons asserts for the first time on appeal that the district court erred by

not tolling the applicable one-year statute of limitations during the twenty-day

period in which he could have filed a motion for rehearing from the Kansas

Supreme Court’s June 1, 2001, decision affirming the denial of a post-conviction


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motion. Serrano, 383 F.3d at 1185 (holding time allotted by the state for filing

motion for rehearing tolls limitation period); Kan. Sup. Ct. R. 7.06 (“A motion for

rehearing . . . may be served and filed within twenty (20) days of the date of

decision.”). Mr. Simmons never made this argument in the district court. Lyons

v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993) (“[I]ssues not

passed upon below will not be considered on appeal); see also Miller v. Marr,

141 F.3d 976, 978 (10th Cir. 1998) (stating that § 2244(d) is not jurisdictional).

But even if he had made the argument, we would still hold–having carefully

considered the briefs, the record, and the applicable law–that he procedurally

defaulted his claims. We therefore AFFIRM the judgment of the district court for

substantially the same reasons stated in its order dated September 27, 2005.

R. Doc. 29. Mr. Simmons’s December 12, 2005, motion is GRANTED. All other

outstanding motions are DENIED.


                                               Entered for the Court



                                               Mary Beck Briscoe
                                               Circuit Judge




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