                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                 UNITED STATES COURT OF APPEALS                              NOV 1 2001

                                  TENTH CIRCUIT                         PATRICK FISHER
                                                                                 Clerk


 CHRISTOPHER CULLEN,

          Petitioner-Appellant,

 v.
                                                          No. 01-2082
                                                     (D.C. No. CIV-00-478)
 JOE R. WILLIAMS, Warden,
                                                         (New Mexico)
 Lea County Correctional Facility;
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.



                         ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.


      Mr. Cullen, a state prisoner appearing pro se, seeks a certificate of

appealability in order to appeal the district court’s denial of his petition for writ

of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons set out


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
below, we deny Mr. Cullen’s request for a certificate of appealability and dismiss

the appeal.

      Mr. Cullen was tried and convicted for a number of crimes including

assault, kidnapping, and rape. He was sentenced in state court to a total of 147

years in prison. His conviction became final on November 30, 1993. On March

25, 1997, Mr. Cullen filed a state petition for writ of habeas corpus, which was

denied on June 10, 1997. His petition for writ of certiorari to the New Mexico

Supreme Court was denied on July 21, 1997. On April 3, 2000, Mr. Cullen filed a

petition for writ of habeas corpus in federal district court. The magistrate judge

recommended that it be dismissed as not timely filed under AEDPA. The district

court adopted the findings and recommendations of the magistrate judge and

dismissed Mr. Cullen’s petition. The court subsequently denied Mr. Cullen’s

request for a certificate of appealability under 28 U.S.C. § 2253.

      To determine whether Mr. Cullen is entitled to a certificate of appealability

when the district court has denied a habeas petition on procedural grounds, we

examine whether he has made a substantial showing “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, 478 (construing 28 U.S.C. § 2253(c)). As we have noted, Mr. Cullen’s state


                                          -2-
court conviction became final on November 30, 1993. Because his conviction

was final before April 24, 1996, Mr. Cullen had a grace period of 365 days, until

April 24, 1997, to file a habeas petition pursuant to section 2254. See 28 U.S.C. §

2244(d); see also United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).

He did not file his federal habeas petition until April 3, 2000, long after his state

conviction became final. As the magistrate judge pointed out, even accounting

for tolling of the statute of limitations during the time state habeas petitions were

pending, the 365 day grace period was well surpassed and the habeas petition was

time-barred.

      We have reviewed Mr. Cullen’s briefs, the magistrate judge’s report and

recommendation, the district court’s orders, and the entire record on appeal. With

respect to the statute of limitations issue, Mr. Cullen has raised no arguments

which are debatable among jurists or are subject to a different resolution on

appeal. See Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). Accordingly, he

has not made a substantial showing that the district court’s procedural ruling was

incorrect. See Slack v. Daniel, 529 U.S. at 478.




                                          -3-
     We DENY Mr. Cullen’s request for a certificate of appealability and

DISMISS the appeal.

                                   ENTERED FOR THE COURT


                                   Stephanie K. Seymour
                                   Circuit Judge




                                     -4-
