                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               June 1, 2005
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 NAM NGUYEN,

          Petitioner - Appellant,

 v.                                                         No. 04-1054
                                                           (D. Colorado)
 GARY GOLDER, Warden, Sterling                         (D.Ct. No. 03-Z-2396)
 Correctional Facility; JOHN
 SUTHERS *, Attorney General of the
 State of Colorado,

          Respondents - Appellants.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                  AND DENYING IN FORMA PAUPERIS


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      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.




      *
        Pursuant to Fed. R. App. P. 43(c)(2), John Suthers has been substituted for Ken
Salazar as Attorney General of the State of Colorado.
      Nam Nguyen applies pro se 1 for a certificate of appealability (COA) from

the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas

corpus and moves to proceed in forma pauperis (ifp) on appeal pursuant to 28

U.S.C. § 1915 and F ED . R. A PP . P. 24. The district court denied Nguyen’s request

for a COA and his motion to proceed ifp. There being no basis for an appeal, we

also deny Nguyen’s COA application and motion to proceed ifp.

                                 I. BACKGROUND

      In 1996, Nguyen (who is Vietnamese) pled guilty in a Colorado state court

to one count of second degree murder and was sentenced to thirty-six years

imprisonment. The judgment of conviction was entered on September 9, 1996.

Nguyen did not file a direct appeal. In 1999, Nguyen filed a petition for post-

conviction relief in state court, which was denied. Nguyen appealed to the

Colorado Court of Appeals, which affirmed the trial court’s decision in October

2002. The Colorado Supreme Court denied review in June 2003.

      On November 26, 2003, Nguyen filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of

Colorado alleging violations of the Sixth and Fourteenth Amendments and that his

sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). However,



      1
       We liberally construe Nguyen’s pro se application. See Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

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because the petition was signed on October 29, 2003, the district court deemed it

filed on that date pursuant to the prisoner mailbox rule. See Marsh v. Soares, 223

F.3d 1217, 1218 n.1 (10th Cir. 2000). On December 24, 2003, the court ordered

Nguyen to show cause why his § 2254 petition should not be dismissed as

untimely. See 28 U.S.C. § 2244(d). Nguyen responded, claiming he does not

speak or understand the English language and alleging the state prison hindered

him from filing his petition on time by failing to provide him with a Vietnamese

interpreter and/or legal materials written in Vietnamese. He asserted that because

of this state-created impediment, the statute of limitations did not begin to run

until January 1999, when the impediment was removed. See 28 U.S.C. §

2244(d)(1)(B).

      On February 4, 2004, the district court denied Nguyen’s petition as

untimely. The court concluded Nguyen’s lack of English proficiency did not

warrant equitable tolling 2 and that his Apprendi claim was barred because

Apprendi did not apply retroactively to cases on collateral review. Thereafter,

Nguyen petitioned the district court for a COA and moved to proceed ifp on

appeal; the court denied both motions.




      2
        The district court did not specifically address Nguyen’s argument under 28
U.S.C. § 2244(d)(1)(B).

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                                  II. DISCUSSION

      Unless we issue a COA, Nguyen may not appeal the dismissal of his § 2254

petition. 28 U.S.C. § 2253(c)(1)(A). “[Section] 2253(c) permits the issuance of a

COA only where a petitioner has made a substantial showing of the denial of a

constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). To make the requisite showing, a petitioner must demonstrate that

“reasonable jurists could debate whether . . . the petition should have been resolved

in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Id. (quotations omitted). “When the district

court denies a habeas petition on procedural grounds . . ., a COA should issue when

the prisoner shows, at least, that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and 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).

      With these principles in mind, we have carefully reviewed the record and the

district court’s order. We agree Nguyen’s § 2254 petition is untimely. The

Antiterrorism and Effective Death Penalty Act (AEDPA) became effective April 24,

1996. In general, the AEDPA provides state prisoners a one-year deadline from the

date their convictions become final by the conclusion of direct review in which to

file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1)(A). Here, Nguyen’s


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conviction became final on October 24, 1996; 3 and the one year period of limitations

commenced the next day, October 25, 1996. Therefore, he had up to and including

October 25, 1997, in which to file his § 2254 petition. See United States v. Hurst,

322 F.3d 1256, 1260 (10th Cir. 2003). He did not file it until October 29, 2003.

Thus, absent equitable tolling or application of § 2244(d)(1)(B), his petition is

untimely.

      Nguyen claims he cannot read, speak or write the English language. He states

that after his conviction he was sent to a prison facility in Minnesota where he was

the only Vietnamese speaking inmate. He claims to have approached the prison law

librarian who informed him he could not help Nguyen unless he could find a

translator. According to Nguyen, he did not find a translator until January 1999,

when he was transferred to a prison facility in Limon, Colorado. He alleges this lack

of access to legal services and materials in Vietnamese constituted a state-created

impediment under 28 U.S.C. § 2244(d)(1)(B) and violated his constitutional right of

access to the courts. Therefore, under § 2244(d)(1)(B), he asserts the statute of



      3
         Rule 4(b)(1) of the Colorado Appellate Rules provides a defendant forty-five
days in which to file a direct appeal. Therefore, Nguyen’s September 9, 1996 conviction
became final October 24, 1996, when the time for filing a direct appeal with the Colorado
Court of Appeals expired. This is true even though he did not file a direct appeal. See 28
U.S.C. § 2244(d)(1)(A) (the one-year limitations period shall run from “the date on which
the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review”) (emphasis added).


                                             -5-
limitations did not begin to run until January 1999, the date the state-created

impediment was removed. In the alternative, Nguyen claims the statute of limitation

should be equitably tolled during the time he was detained in Minnesota. We

disagree.

      Section 2244(d)(1)(B) provides an exception to the general rule that the one-

year statute of limitations for filing a § 2254 habeas petition begins to run from the

date the petitioner’s conviction becomes final by the conclusion of direct review.

This exception occurs when the state creates an impediment which prevents the

petitioner from filing his petition on time. In such circumstances, the statute of

limitations does not begin to run until the impediment is removed. In addition to §

2244(d)(1)(B), the one-year statute of limitations is subject to equitable tolling.

Marsh, 223 F.3d at 1220. “However, this equitable remedy is only available when an

inmate diligently pursues his claims and demonstrates that the failure to timely file

was caused by extraordinary circumstances beyond his control.” Id.

      Neither § 2244(d)(1)(B) nor equitable tolling saves Nguyen’s petition. Even if

we were to commence the statute of limitations clock in January 1999, as Nguyen

suggests, he still cannot account for the cumulative fourteen month delay in filing

once he was moved to the Colorado facility. The record establishes that after his

transfer to Colorado, Nguyen waited ten months (until October 25, 1999) to

challenge his conviction and sentence in state court. After exhausting his state court


                                           -6-
remedies in June 2003, 4 he waited an additional four months (until October 29, 2003)

in which to file his federal habeas petition. Therefore, even applying all reasonable

tolling, Nguyen’s petition is untimely. 5

                                   III. CONCLUSION

       Nguyen’s requests for a COA and to proceed ifp on appeal are DENIED. His

motion to remand this case to the Colorado Supreme Court is also DENIED. This

appeal is DISMISSED.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




       4
         Section § 2244(d)(2) tolls the statute of limitations during the time “a properly
filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending . . . .” A petition for writ of certiorari to the
United States Supreme Court is not an application for State post-conviction or other
collateral review. Rhine v. Boone, 182 F.3d 1153, 1155-56 (10th Cir. 1999). Therefore,
the time for filing a petition for certiorari with the United States Supreme Court is not
considered in the § 2244(d)(2) tolling calculation. Consequently, Nguyen’s state post-
conviction proceedings were final upon the Colorado Supreme Court’s denial of review
in June 2003.
       5
          Nguyen has filed a motion to remand this case to the Colorado Supreme Court,
claiming his statute of conviction is unconstitutional pursuant to Apprendi and Blakely v.
Washington, 124 S.Ct. 2531 (2004). However, neither Apprendi nor Blakely are
retroactive to cases on collateral review. United States v. Price, 400 F.3d 844, 849 (10th
Cir. 2005) (holding Blakely does not apply retroactively to convictions that were already
final at the time Blakely was decided); United States v. Mora, 293 F.3d 1213, 1219 (10th
Cir. 2002) (Apprendi does not apply retroactively to initial habeas petitions). Thus, his
motion to remand is denied.

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