                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          DEC 18 2000
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


CHARLES J. McMILLIAN,

             Petitioner-Appellant,

v.                                                       No. 00-1151
                                                     (District of Colorado)
BOB HICKOX; ATTORNEY                                 (D.C. No. 99-Z-2150)
GENERAL FOR THE STATE OF
COLORADO,

             Respondents-Appellees.




                          ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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       This order and judgment is not binding precedent, except under the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.
      Proceeding pro se , Charles J. McMillian seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s dismissal of his 28

U.S.C. § 2254 habeas 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). McMillian also filed a motion seeking to proceed    in forma

pauperis on appeal; that motion is granted.

      In his § 2254 petition, McMillian stated that he pleaded guilty in Colorado

state court to conspiracy to commit first degree murder, retaliation against a

witness, second degree murder, and first degree aggravated motor vehicle theft.

He further stated that a judgment of conviction was entered in Colorado state

court on June 24, 1994. McMillian asserts that he did not file a direct appeal.

McMillian’s § 2254 petition was not filed with the United States District Court

for the District of Colorado until November 5, 1999.

      Recognizing that McMillian’s Colorado state conviction became final prior

to the enactment of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), the district court noted that, in the absence of any reason to toll the

limitations period, McMillian’s § 2254 petition should have been filed prior to

April 24, 1997.   See Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998)

(holding that a state prisoner has one year from the effective date of the AEDPA

to file a § 2254 habeas petition but that the one-year period is tolled by any time


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spent pursuing post-conviction relief in state court). Accordingly, the district

court issued an order to show cause requesting that McMillian demonstrate why

his § 2254 petition should not be dismissed as untimely. McMillian was

specifically asked to provide the court with additional information relating to any

post-conviction proceedings he initiated in Colorado state court.

      McMillian filed a response to the order to show cause wherein he

contended that he had filed a post-conviction motion pursuant to Rule 35(c) of

the Colorado Rules of Criminal Procedure on May 29, 1997. He further claimed

that the Colorado district court denied this Rule 35(c) motion on February 18,

1998 and the Colorado Court of Appeals affirmed the denial on April 15, 1999.

McMillian then contended he filed a petition for rehearing on April 22, 1999.

McMillian claimed the petition for rehearing was denied on May 20, 1999.

McMillian also claimed he filed a petition for a writ of certiorari to the Colorado

Supreme Court on June 15, 1999 and that the petition was denied on September

27, 1999, with the mandate issuing on October 25, 1999.

      Based on the information provided by McMillian, the district court

concluded that McMillian’s § 2254 petition was time-barred because it was filed

well after the April 23, 1997 deadline and was not tolled by any of the state post-

conviction proceedings. The district court noted that the state post-conviction

proceedings were not commenced until May 29, 1997,      i.e. , after the one-year


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limitations period had already expired. Consequently, the district court dismissed

McMillian’s § 2254 petition and denied his request for a COA.

       In this appeal, McMillian has filed with this court numerous motions and

briefs, including a motion purportedly filed pursuant to Rule 60(b) the Federal

Rules of Civil Procedure and a Motion to Amend Application for Certificate of

Appealability. We construe all of these various filings as an application for a

COA together with an opening brief. On appeal, McMillian argues that the one-

year limitations period should be tolled because he initiated state post-conviction

proceedings before the April 23, 1997 deadline. McMillian argues that his

mental impairment and lack of legal expertise caused him to erroneously inform

the district court that his post-conviction proceedings were not initiated until

after April 23, 1997. In support of his argument, McMillian has provided this

court with a copy of a document entitled Petition for Writ of Certiorari. This

petition appears to have been filed with the Colorado Supreme Court on January

6, 1997, more than two months before the expiration of the one-year limitations

period. McMillian has also provided this court with a copy of an order entered

by the Colorado Supreme Court on May 22, 1997, apparently denying the Petition

for Writ of Certiorari.   1
                              This order was entered on May 22, 1997, one week



       This court liberally construes the motion to which the Petition for Writ of
       1

Certiorari and the Order were attached as a Motion to Supplement the Record and
hereby grants that motion. Additionally, we note that the Petition for Writ of

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before McMillian filed the Rule 35(c) motion of which he informed the district

court. In the Petition for Writ of Certiorari, McMillian clearly raised the one

issue raised before the district court,   i.e. , he was denied due process because his

trial attorney failed to assert his mental impairment as an affirmative defense.



       McMillian acknowledges that he failed to correctly inform the district

court of the date he initiated post-conviction proceedings but argues that this

failure was the result of his mental impairment and lack of legal expertise.

Although rarely exercised, this court has the discretion to consider arguments not

considered by the district court.     See Anixter v. Home-Stake Prod. Co.   , 77 F.3d

1215, 1229 (10th Cir. 1996). We conclude that the facts in this case warrant our

consideration of the argument raised by McMillian for the first time in this

appeal.

       Because the district court denied McMillian’s habeas petition on

procedural grounds, it did not reach his underlying constitutional claims. Under

these circumstances, McMillian is not entitled to a COA unless he can show, “at

least, that jurists of reason would find it debatable whether the petition states a



Certiorari refers to an “adverse decision in the Colorado Court of Appeals on
November 14, 1996.” Although McMillian has not provided this court with a
copy of that decision or a copy of the underlying pleadings, those documents may
also be necessary to accurately determine the timeliness of McMillian’s § 2254
petition.

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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 , 120 S. Ct. 1595, 1604 (2000).

      This court has reviewed McMillian’s application for a COA, his appellate

brief, the district court’s Order dated March 24, 2000, and the entire record on

appeal including the additional information not presented to the district court.

That review demonstrates that McMillian has made a showing that jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling. Additionally, this court has taken a “quick look” at the

underlying constitutional claim raised in McMillian’s habeas petition and

concludes that “[o]n its face, the petition alleges the denial of a constitutional

right.” Paredes v. Atherton , 224 F.3d 1160, 1161 (10th Cir. 2000). Accordingly,

this court grants McMillian a COA on the issue of whether and to what extent

the one-year limitations period should be tolled under 28 U.S.C. § 2244(d)(2),

vacates the order dismissing McMillian’s habeas petition, and      remands to the

district court for a determination of the timeliness of McMillian’s habeas

petition.




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This court, however, expresses no opinion on the ultimate disposition of the

substantive claim raised in McMillian’s petition.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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