                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            SEP 26 2002
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 JESUS F. RODRIGUEZ,

                Petitioner - Appellant,                   No. 02-1242
           v.                                         (D.C. No. 01-Z-749)
 RICK SOARES and ATTORNEY                                 (D. Colorado)
 GENERAL OF THE STATE OF
 COLORADO,

                Respondents - Appellees.


                              ORDER AND JUDGMENT          *




Before EBEL , LUCERO , and HARTZ , 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.

       On March 29, 2002, the petitioner pro se, Jesus F. Rodriguez, filed an

application for a writ of habeas corpus under 28 U.S.C. § 2254. Mr. Rodriguez


       This order and judgment is not binding precedent, except under the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.
was convicted of cocaine offenses in Colorado state court in 1993, and he is now

serving his sentence in the custody of the Colorado Department of Corrections.

In his habeas petition, Mr. Rodriguez argued that he received ineffective

assistance of counsel during the trial that resulted in his conviction.

      In an order entered May 13, 2002, the district court denied Mr. Rodriguez’s

application, finding that the one-year limitation period set forth in 28 U.S.C.

§ 2244(d) barred the action. Mr. Rodriguez submitted a notice of appeal, and he

moved the district court for a certificate of appealability (COA) and for leave to

proceed in forma pauperis on appeal. The district court denied these motions.

Mr. Rodriguez now seeks a COA from this court, so that he may appeal the

district court’s decision as to his habeas corpus petition, as well as leave to

proceed in forma pauperis.

      In concluding that Mr. Rodriguez’s habeas petition was untimely under 28

U.S.C. § 2244(d), the district court relied on a procedural ground to dismiss the

action. The United States Supreme Court has instructed that “[w]hen the district

court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, 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


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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Slack court went on

to note that “[w]here a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id.

      In this case the district court’s analysis demonstrated that the one-year

limitation period prescribed in 28 U.S.C. § 2244(d) created “a plain procedural

bar” to Mr. Rodriguez’s action. The limitation period began to run on “the date

on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The

Colorado Supreme Court denied Mr. Rodriguez’s petition for certiorari on direct

appeal on October 21, 1996. As the district court pointed out, Mr. Rodriguez’s

conviction thus became final on January 21, 1997, when the 90-day period for

seeking certiorari from the United States Supreme Court expired. Rule 13.1,

Rules of the Supreme Court.

      Section 2244(d)(2) provides that the one-year limitation period is tolled

while “a properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending.” The district

court noted that on October 16, 1997, Mr. Rodriguez sought post-conviction

review in state court. On October 29, 2001, the Colorado Supreme Court denied


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Mr. Rodriguez’s petition for certiorari as to post-conviction review, and on

November 5, 2001, the Colorado Court of Appeals issued its mandate. In

assessing whether Mr. Rodriguez’s habeas petition was time-barred, the district

court excluded the period between October 16, 1997 and October 29, 2001.

Given that only seven days elapsed between the date of the Colorado Supreme

Court’s denial of certiorari and the date of the mandate, the district court’s

ultimate determination concerning the timeliness of Mr. Rodriguez’s habeas

petition would have been the same regardless of which date was used to mark the

end of Mr. Rodriguez’s post-conviction proceedings in state court.

      The time that counted against the limitation period set forth in 28 U.S.C.

§ 2244(d)(2) consisted of (1) the time period between the date on which

Mr. Rodriguez’s conviction became final and the date on which he initiated post-

conviction proceedings and (2) the time period between the date when

Mr. Rodriguez’s post-conviction proceedings ended and the date on which he

filed his habeas petition in federal court. Added together, these time periods

exceeded one year. The district court indicated that Mr. Rodriguez had failed to

show any extraordinary circumstances that would support equitably tolling the

limitation period. Although Mr. Rodriguez alleges that the district court’s

computations relating to the limitation period are inaccurate, he provides no

reasoning in support of his assertion.


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      Having carefully considered Mr. Rodriguez’s brief and the appellate record,

we agree with the district court’s conclusion that Mr. Rodriguez’s petition for

habeas corpus is time-barred. Therefore, for substantially the same reasons given

by the district court, we DENY Mr. Rodriguez’s motion for a COA, DENY his

motion to proceed in forma pauperis, and DISMISS this appeal.

                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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