                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 30 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DANIEL P. SHANNON,

                  Petitioner - Appellant,

    v.                                                    No. 02-1246
                                                       D.C. No. 02-Z-305
    BRENT CROUSE; ATTORNEY                               (D. Colorado)
    GENERAL OF THE STATE OF
    COLORADO,

                  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.




*
      This order and judgment is not binding precedent, except under the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.
      Daniel P. Shannon, proceeding pro se, appeals the district court’s order

dismissing his 28 U.S.C. § 2254 habeas petition. The district court concluded that

Shannon had failed to file his petition within the governing one-year statute of

limitations, see 28 U.S.C. § 2244(d)(1), and that he was not entitled to equitable

tolling of the limitations period. Pursuant to 28 U.S.C. § 2253(c), we previously

granted Shannon a certificate of appealability on the timeliness issue and the

respondents were required to file a brief. We affirm the district court’s order of

dismissal.

      Shannon entered a guilty plea to a sexual assault charge. On March 24,

1998, the state trial court pronounced an oral sentence on the charge, and the

court imposed “a determined sentence to the Department of Corrections in the

amount of seven years together with any mandatory period of parole that’s

applicable to that.” Ex. 2 to Shannon’s Motion for Summary Judgment (emphasis

added). On the same day, the trial court entered a judgment of conviction, or

mittimus, which stated that Shannon was sentenced to the Department of

Corrections for seven years “ plus any term of parole authorized by [the applicable

statute].” Id. at Ex. 3 (emphasis added).

      Shannon did not file a direct appeal. Instead, he filed a post-conviction

motion for sentencing reconsideration under Rule 35 of the Colorado Rules of




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Criminal Procedure. On August 14, 1998, the trial court denied Shannon’s

Rule 35 motion, and he did not appeal the denial.

      In November 1999, Shannon filed a post-conviction motion under Rule 36

of the Colorado Rules of Criminal Procedure to correct clerical mistakes in the

mittimus, claiming that the mittimus conflicted with the trial court’s oral

sentence. Specifically, Shannon claimed that, by orally sentencing him to the

Department of Corrections for “seven years         together with any mandatory period

of parole,” the trial court meant to sentence him to a prison term of only two years

followed by a five-year period of parole. Shannon claimed the mittimus

conflicted with the oral sentence, however, because it provided for a seven-year

prison term “ plus . . . parole.” On November 23, 1999, the trial court entered an

order denying Shannon’s Rule 36 motion, finding that “there was no mistake in

defendant’s mittimus.” R., Doc. 5, Ex. 4.

      Shannon appealed the denial of his Rule 36 motion to the Colorado Court

of Appeals. On August 9, 2001, the court issued an opinion in which it concluded

that the trial court erred by imposing mandatory parole as part of Shannon’s

sentence, and the court remanded the case to the trial court for entry of an

amended mittimus reflecting that he was subject to discretionary parole.

However, the court did not address Shannon’s claim that the seven-year prison

term imposed by the mittimus conflicted with the trial court’s oral sentence.


                                             -3-
Shannon therefore sought certiorari review in the Colorado Supreme Court, but

the court denied his certiorari petition on January 14, 2002.

       On February 15, 2002, Shannon filed his § 2254 habeas petition. Shannon

subsequently filed a supplement to his habeas petition in which he argued that the

petition was filed within the one-year limitations period because: (1) under

§ 2244(d)(1)(D), the one-year limitations period did not begin to run until July 20,

1999, when he obtained a transcript of the sentencing hearing and discovered the

alleged conflict between the trial court’s oral sentence and the mittimus;   1
                                                                                 and

(2) under § 2244(d)(2), the running of the one-year limitations period was tolled

from November 11, 1999, when he filed his Rule 36 motion in the trial court until

January 14, 2002, when the Colorado Supreme Court denied certiorari review.

Alternatively, Shannon argued that he was entitled to have the one-year

limitations period equitably tolled.

       The district court rejected Shannon’s arguments. First, the court concluded

that, under § 2244(d)(1)(A), the one-year limitations period began to run on

May 8, 1998, when the period for filing a direct appeal under Colorado law

expired and Shannon’s conviction and sentence became final. Second, because



1
       Shannon argues for the first time on appeal that his habeas petition was
also timely filed under § 2244(d)(1)(B) and (C). Shannon’s arguments under
subsections (B) and (C) are without merit, and he waived them by failing to assert
them in the district court.

                                            -4-
Shannon had failed to allege that he was somehow prevented from obtaining

a copy of the mittimus or knowledge of the factual predicate for his claims,          2
                                                                                          the

court concluded that he had knowledge of the alleged conflict between the trial

court’s oral sentence and the mittimus at the time the mittimus was entered.

Third, the court concluded that, under § 2244(d)(2), the one-year limitations

period was tolled only from May 8, 1998        3
                                                   until August 14, 1998, when the trial

court entered its order denying Shannon’s Rule 35 motion. Finally, the court

concluded that there was no basis for equitable tolling.

       We review the district court’s factual findings for clear error and its

conclusions of law under § 2244(d) de novo.           Burger v. Scott , __ F.3d __,

No. 01-6285, 2003 WL 152736, at *3 (10th Cir. Jan. 15, 2003). We review the

district court’s decision on equitable tolling for an abuse of discretion.       Id.

Having conducted the required reviews, we agree with the district court’s

conclusions, and we affirm the dismissal of Shannon’s habeas petition for

substantially the same reasons set forth in the order and judgment of dismissal

entered by the district court on May 15, 2002. Further, we deny Shannon’s pro se


2
      At page 15 of their brief, respondents note Shannon’s inclusion in his
supplement to his habeas petition of an official time computation report dated
March 31, 1998, which indicated Shannon’s sentence was seven years.
3
      Because the record did not reveal the day on which Shannon filed his
Rule 35 motion, the district court assumed it was filed on May 8, 1998–the same
day Shannon’s conviction and sentence became final.

                                              -5-
motions for summary judgment and judgment by default filed with this court, but

we grant his pro se motion for leave to amend his motion for summary judgment

and his motion for leave to file a supplemental reply brief. We also grant his

motion for leave to proceed on appeal without prepayment of costs or fees.

      The district court’s order and judgment of dismissal is AFFIRMED.


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




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