                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 2 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    RUDOLFO LUCERO,

                Plaintiff - Appellant,

    v.                                                   No. 01-2285
                                                 (D.C. No. CIV-01-90 LH/DJS)
    LAWRENCE TAFOYA, Warden,                           (D. New Mexico)
    Southern New Mexico Correctional
    Facility; ATTORNEY GENERAL
    FOR THE STATE OF NEW MEXICO,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before KELLY and BALDOCK , Circuit Judges, and          BRORBY , Senior Circuit
Judge.



         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      This order and judgment is not binding precedent, except under the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.
      Petitioner Rudolfo Lucero, a New Mexico inmate appearing           pro se , seeks

a certificate of appealability (COA) to appeal the district court’s denial of his

habeas corpus petition filed pursuant to 28 U.S.C. § 2254.    See 28 U.S.C.

§ 2253(c)(1)(A) (providing that no appeal may be taken from the denial of

a § 2254 habeas petition unless the petitioner first obtains a COA). Because

petitioner has not demonstrated “a substantial showing of the denial of

a constitutional right,” this court denies his request and dismisses this appeal.

Id. § 2253(c)(2).

      On May 19, 1999, petitioner pled no contest, pursuant to a plea agreement,

to one count of aggravated battery of a household member. He was adjudged to

be a habitual offender and sentenced to a prison term of seven years. Petitioner

filed a timely notice of appeal to the New Mexico Court of Appeals, claiming his

speedy trial rights were violated and he received ineffective assistance of counsel.

The New Mexico Court of Appeals dismissed the appeal on November 3, 1999,

ruling that petitioner had knowingly and voluntarily waived his right to appeal in

connection with his guilty plea and had not alleged his counsel was ineffective in

counseling his plea agreement. On December 8, 1999, petitioner filed a         pro se

state habeas corpus petition, again raising his speedy trial rights and ineffective

assistance of counsel claims. The state district court summarily dismissed his

petition on December 15, 1999.


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      Petitioner then submitted a   pro se petition for writ of certiorari with the

New Mexico Supreme Court on January 18, 2000. That court refused to accept

the submission because it was untimely filed pursuant to New Mexico procedural

rules requiring petitions for certiorari be filed within thirty days of the district

court’s decision. Petitioner filed a motion with the New Mexico Supreme Court

arguing that he delivered his certiorari petition to prison officials on January 13

and, therefore, it should be considered timely by application of the prisoner

“mailbox rule” announced in    Houston v. Lack , 487 U.S. 266, 276 (1988) (holding

that pro se prisoner’s federal notice of appeal deemed “filed” when delivered to

prison officials). The New Mexico Supreme Court ordered briefing on the

application of the prisoner mailbox rule, but ultimately denied the motion without

discussion on February 16, 2000. Petitioner filed a motion with the state district

court on June 1, 2000, to correct an illegal sentence, which was denied on

September 21, 2000.

      On January 19, 2001, petitioner filed the instant application for federal

habeas relief, alleging that his speedy trial rights were violated, he was denied

effective assistance of counsel and that he received an illegal sentence. The

district court, adopting the magistrate judge’s recommendation, denied the

petition. It ruled that petitioner had procedurally defaulted his claims in state

court and had failed to demonstrate cause and prejudice for this default or that


                                           -3-
failure to address the claims in federal court would amount to a fundamental

miscarriage of justice. The district court denied petitioner a COA.

       In his opening brief and application for COA, petitioner reasserts the

claims in his habeas petition and claims the mailbox rule should have been

applied in determining when his state petition for certiorari was filed. As noted

above, to obtain a COA, petitioner must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as here, the district

court denies a petition on procedural grounds, the petitioner must 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).

       Petitioner has not met this standard. In   Adams v. LeMaster , 223 F.3d 1177,

1183 (10th Cir. 2000), cert. denied , 531 U.S. 1195 (2001), this court held that the

mailbox rule did not apply to state habeas petitions in New Mexico. Although

Adams addressed the issue of when a habeas corpus petition was “properly filed”

in state district court for purposes of 28 U.S.C. § 2244(d), this court also

discussed application of the mailbox rule to petitions for certiorari filed in the

New Mexico Supreme Court:

       [I]n habeas cases once a petitioner “files” a petition for certiorari
       with the New Mexico Supreme Court, the petition is deemed denied
       if “certiorari is not granted by the Supreme Court within thirty (30)
       days after filing.” N.M. R. Crim. P. 5-802G(3). While we are unable
       to find any case law on point, it strains credulity to argue the


                                            -4-
      thirty-day period begins running prior to the petition’s arrival at the
      New Mexico Supreme Court.

Id. at 1182. In other words, filing of a petition for certiorari in New Mexico must

occur within thirty days of the district court’s decision and is not subject to the

mailbox rule.

      Petitioner’s request for a COA is DENIED. The appeal is DISMISSED.


                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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