                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 17 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


ANDREW JUAN ANTHONY,

          Petitioner-Appellant,
                                                      No. 02-3209
v.
                                                   (District of Kansas)
                                               (D.C. No. 01-CV-3396-DES)
MICHAEL A. NELSON; ATTORNEY
GENERAL OF KANSAS,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY, 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       This order and judgment is not binding precedent, except under the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.
       Andrew Juan Anthony, the      pro se petitioner in this case, seeks a certificate

of appealability (“COA”) so he can appeal the district court’s denial of his 28

U.S.C. § 2254 petition.    See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal

may be taken from the denial of a § 2254 petition unless the petitioner first

obtains a COA). The district court concluded that Anthony’s petition was

untimely under the Antiterrorism and Effective Death Penalty Act of 1996 and

dismissed it with prejudice.   See 28 U.S.C. § 2244(d)(1) (“A 1-year period of

limitation shall apply to an application for a writ of habeas corpus by a person in

custody pursuant to a judgment of a State court.”). Anthony is not entitled to a

COA unless he can make a “substantial showing of the denial of a constitutional

right.” Id. § 2253(c)(2). Anthony can make this showing by demonstrating that

the issues raised are debatable among jurists, a court could resolve the issues

differently, or that the questions presented deserve further proceedings.      See

Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).

       This court has read Anthony’s request for a COA and accompanying brief

and has conducted a de novo review of the district court’s order and the entire

record on appeal. That de novo review clearly demonstrates the district court’s

dismissal of Anthony’s § 2254 petition as untimely is not deserving of further

proceedings or subject to a different resolution on appeal. Accordingly, this

court denies Anthony’s request for a COA for substantially those reasons set


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forth in the magistrate judge’s report and recommendation dated January 11,

2002 and the district court’s order dated June 7, 2002, and   dismisses this appeal.

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge




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