                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 24 2001
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 DUANE WILLETT,

           Petitioner-Appellant,
 v.                                                       No. 00-4180
 JIM SMITH, Warden, Utah State                       (D.C. No. 00-CV-274)
 Prison; UTAH STATE PRISON,                                (D.Utah)

           Respondents-Appellees.




                             ORDER AND JUDGMENT           *




Before HENRY , BRISCOE and MURPHY, 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.

       Petitioner Duane Willett, a state prisoner appearing pro se, seeks a

certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C.


       This order and judgment is not binding precedent, except under the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.
§ 2254 petition for writ of habeas corpus as untimely. We deny the request for a

certificate of appealability and dismiss the appeal.

      Willett was convicted by a jury in state court of capital homicide in

February 1994, and was sentenced to life in prison.      The Utah Supreme Court

affirmed his convictions on September 12, 1995,       State v. Willett , 909 P.2d 218,

221 (Utah 1995), and his rehearing request was denied on December 27, 1995.

Willett was granted an extension until March 27, 1997, to file a state habeas

petition, but did not file his petition until September 20, 1999. The Utah

Supreme Court denied his habeas petition on October 18, 1999.

      Willett filed his § 2254 petition on March 28, 2000, contending (1) the

trial court misinterpreted the Utah due process law; (2) he received ineffective

assistance of trial counsel because there was no pretrial investigation and a

conflict of interest; (3) the trial court's erroneous ruling was a result of personal

bias and/or prejudice; (4) a conspiracy existed that resulted in intimidation and

fear to alibi witness testimony; (5) he was denied his Sixth and Fourteenth

Amendment rights to present defense witnesses; (6) the trial court committed

error in allowing the State to refile the original information; (7) the trial court

committed error in not allowing a new preliminary hearing; (8) there was

insufficient evidence to substantiate the conviction; (9) the prosecutor introduced

unreliable and uncorroborated hearsay testimony; (10) there was prosecutorial


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misconduct; (11) the State pursued a malicious prosecution; and (12) he was

denied a fair trial based on improper and prejudicial jury instructions. The

district court directed respondents to respond to the habeas petition. Respondents

filed their response on May 25, 2000, alleging Willett's habeas petition was

barred by the statute of limitations.

      The magistrate court issued its report and recommendation on September

26, 2000, finding Willett's habeas petition was time-barred and recommending

that the petition be dismissed as untimely. The district court originally adopted

the report and recommendation and dismissed the petition as untimely on October

12, 2000, finding Willett failed to file objections to the report. Although

Willett's objections were filed October 16, 2000, the certificate of mailing

indicated the objections were delivered to prison officials on October 6, 2000.

Willett filed an objection to the dismissal order pursuant to Federal Rule of Civil

Procedure 59(e). On March 14, 2001, the district court determined that Willett

had filed timely objections to the magistrate's report, vacated its October 12

order, re-adopted the magistrate's report, and dismissed Willett's habeas petition

as untimely.

      As Willett filed his habeas petition on March 28, 2000, the provisions of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply.         See

Lindh v. Murphy , 521 U.S. 320, 336 (1997). Under 28 U.S.C. § 2244(d)(1) and


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Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998), Willett had until

April 23, 1997, to file his habeas petition. He did not seek post-conviction relief

in state court during the applicable limitation period and his application for post-

conviction relief filed in September 1999 did not toll the running of the

limitation period.

      Willett's request for a certificate of appealability is DENIED. The appeal

is DISMISSED. The mandate shall issue forthwith.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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