                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        February 7, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                          Clerk of Court

 DONALD ALBERT,
              Petitioner-Appellant,                      No. 05-2122
 v.                                            (D.C. No. CIV-04-1318 JB/RLP)
 JAMES JANECKA, Warden, Lea                             (D. New Mex.)
 County Correctional Center;
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,
              Respondents-Appellees.


                                      ORDER


Before HENRY, McKAY, and EBEL, Circuit Judges.



      This is a pro se § 2254 appeal. Petitioner is currently serving sentences in

New Mexico state prison following his convictions for sexual assault on a minor.

Judgment was entered on those convictions on June 18, 1999. He did not file a

direct appeal in state court. Petitioner filed a 28 U.S.C. § 2254 petition on

November 22, 2004.

      In the magistrate judge’s proposed findings and disposition, he ruled that

the petition was time barred by the one-year limitation period contained in the

Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1). The

one-year limitation runs from “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such

review.” § 2244(d)(1)(A). Petitioner had thirty days from his June 18, 1999,

entry of judgment to seek direct review. Thus, Petitioner’s window of time in

which to file his § 2254 petition closed one year and thirty days after the date of

his judgment of conviction, or July 18, 2000. But Petitioner did not file his

habeas petition until November 22, 2004, past the time allowed.

      The district court adopted the magistrate judge’s findings and dismissed the

action. Order (Mar. 29, 2005, D.N.M.). The district court also issued an order

denying certificate of appealability on May 24, 2005. Petitioner now seeks from

this court a certificate of appealability. The issues he raises on appeal are

identical to those brought before the district court.

      To grant a certificate of appealability, Petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).

To meet this burden, Petitioner must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotation omitted).

      We have carefully reviewed Petitioner’s brief, the district court’s

disposition, the magistrate judge’s recommendation, and the record on appeal.


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Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue

which meets our standard for the grant of a certificate of appealability. For

substantially the same reasons set forth by the magistrate judge and adopted by

the district court in its Order of March 29, 2005, we cannot say “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner.” Id.

      We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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