                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            DEC 8 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 DANIEL JOSEPH MARTIN,

           Petitioner-Appellant,
 v.                                                       No. 99-1203
 LARRY EMBRY; THE ATTORNEY                           (D.C. No. 97-N-2115)
 GENERAL OF THE STATE OF                                   (D.Colo.)
 COLORADO,

           Respondents-Appellees.


                             ORDER AND JUDGMENT           *




Before ANDERSON, KELLY and BRISCOE, 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.

       Following his conviction for a number of state law offenses, Daniel Joseph

Martin sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district


       This order and judgment is not binding precedent, except under the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.
court ruled that Martin’s habeas petition was barred by the one-year statute of

limitation set forth in 28 U.S.C. § 2244(d). Because we conclude that Martin

filed a motion for collateral relief that tolled the limitation period, we reverse the

district court’s dismissal of Martin’s petition.

                                            I.

      Martin was convicted in 1986 of several criminal offenses under Colorado

law. These offenses included first degree sexual assault, second degree burglary,

aggravated robbery, “a crime of violence,” and “of being a habitual offender.”

See People v. Martin , 791 P.2d 1159, 1160 (Colo. Ct. App. 1989). The trial court

sentenced Martin to 50 years imprisonment. Martin appealed, asserting that the

trial court erred by (1) requiring him to display a scar on his abdomen to the jury;

(2) failing to suppress evidence of an unconstitutional prior conviction, which

deterred Martin from testifying in his own defense; (3) submitting inadequate

instructions to the jury on the habitual criminal count; and (4) failing to compel

the attendance of an investigating officer. In 1989, the Colorado Court of

Appeals affirmed Martin’s conviction on the first four charges, but reversed

Martin’s conviction on the habitual criminal charge.    Id. at 1160-62. The court of

appeals denied Martin’s petition for rehearing, and the Colorado Supreme Court

denied the parties’ petitions for certiorari. In accordance with the decision by the

court of appeals, the trial court resentenced Martin to 40 years imprisonment and


                                            2
issued an amended mittimus in 1990.

       In 1993, Martin filed a motion for post-conviction relief pursuant to

Colorado Rule of Criminal Procedure 35(c). Martin alleged in the motion that he

received ineffective assistance of counsel and that the trial court failed to

properly advise him of his rights under       People v. Curtis , 681 P.2d 504 (Colo.

1984). The trial court denied the motion without a hearing. Martin again

appealed. A Colorado appeals court affirmed the trial court’s order in 1994, and

the Colorado Supreme Court denied certiorari in 1995.

       Martin filed a motion for “Correction of Mittimus” and “Sentence

Reconsideration” (the “sentence reconsideration motion,” or “SRM”) in April

1996. Martin argued in the motion that (1) the mittimus issued by the trial court

in 1990 accurately reflected his 40-year sentence but mistakenly referred to

Martin’s “former status as an habitual offender,”       see SRM ¶ 7; and (2) his 40-

year sentence should be further reduced “in light of various factors which did not

exist at the time of his 1990 resentencing.”       Id. ¶ 8. Martin contended that the

mittimus should be amended pursuant to Colorado Rule of Criminal Procedure

35(a), and that his sentence should be reduced pursuant to Rule 35(b).       1
                                                                                 In


       1
           Rule 35 states in relevant part:

              (a) Correction of Illegal Sentence. The court may correct an
       illegal sentence at any time and may correct a sentence imposed in an
                                                                     (continued...)

                                               3
September 1996, a Colorado district court granted Martin’s request to amend his

mittimus and denied Martin’s motion to reduce his sentence.

      Martin filed his federal habeas petition in August 1997. Martin’s petition

contains three claims: (1) that the trial court “chilled” his constitutional right to

testify by refusing to suppress the invalid prior conviction; (2) that the trial

court’s decision to require him to display the scar on his abdomen interfered with

his right to due process; and (3) that his trial counsel, who purportedly was under

the influence of cocaine while prosecuting the case, provided ineffective

assistance. Adopting the recommendation of a magistrate judge, the federal


      1
       (...continued)
      illegal manner within the time provided herein for the reduction of
      sentence.
             (b) Reduction of Sentence. The court may reduce the sentence
      provided that a motion for reduction of sentence is filed (1) within
      120 days after the sentence is imposed, or (2) within 120 days after
      receipt by the court of a remittitur issued upon affirmance of the
      judgment or sentence or dismissal of the appeal, or (3) within 120
      days after entry of any order or judgment of the appellate court
      denying review or having the effect of upholding a judgment of
      conviction or sentence. The court may, after considering the motion
      and supporting documents, if any, deny the motion without a
      hearing. The court may reduce a sentence on its own initiative
      within any of the above periods of time.

Colo. R. Crim. P. 35(a)-(b). Martin’s motion to amend his mittimus arguably
should have been filed pursuant to Rule 36 rather than Rule 35(a). Rule 36
provides that “[c]lerical mistakes in judgments, orders, or other parts of the
record and errors in the record arising from oversight or omission may be
corrected by the court at any time and after such notice, if any, as the court
orders.”

                                           4
district court concluded that Martin’s petition was untimely and dismissed it with

prejudice. We previously granted Martin’s request for a certificate of

appealability, and now consider the district court’s dismissal of the petition under

28 U.S.C. § 2244(d).

                                            II.

       The sole issue before us is whether Martin’s habeas petition was timely.

Section 2244(d)(1) provides that “[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.” The limitation period generally begins 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).

For prisoners whose convictions became final prior to the enactment of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), “the one-year statute

of limitation does not begin to run until April 24, 1996.”   Hoggro v. Boone , 150

F.3d 1223, 1225 (10th Cir. 1998);     accord Barnett v. LeMaster , 167 F.3d 1321,

1322 (10th Cir. 1999). Moreover, “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending” shall not be counted toward any period

of limitation. 28 U.S.C. § 2244(d)(2).

       The State contends that Martin’s SRM did not toll the limitation period


                                             5
because it failed to satisfy the requirements of 28 U.S.C. § 2244(d)(2).   2
                                                                               First, the

State argues that the SRM was not one for “post-conviction or other collateral

review” because Colorado Rules of Criminal Procedure 35(b) and 36 cannot be

used to challenge a judgment of conviction. The State maintains that the purpose

of Rule 35(b) is merely “to allow for discretionary reduction of a sentence,”

Response Brief of Respondents-Appellees at 12, and the aim of Rule 36 is simply

to correct clerical errors. Second, the State argues that Martin’s SRM did not

relate to any “pertinent judgment or claim.” According to the State, the SRM

“did not present any of Mr. Martin’s present federal claims to the state courts for

potential exhaustion of state remedies, nor did it seek to challenge the validity of

Mr. Martin’s conviction.”     Id. at 15.

       These arguments miss the mark. No authority cited by the State holds that

motions for “post-conviction or other collateral review” are limited to those that

contain constitutional challenges to the movant’s conviction. Nor do any of the

cases cited by the State indicate that a movant’s sentence is somehow unrelated to

the “judgment or claim” described in 28 U.S.C. § 2244(d)(2). Martin timely filed

his sentence reconsideration motion pursuant to Colorado Rule of Criminal


       2
         The State acknowledges that if Martin’s SRM tolled the limitations
period, his habeas application was timely.   See Response Brief of Respondents-
Appellees at 10-11 (noting that Martin’s SRM was pending from April 1996
through September 1996, and that “[i]f the running of the limitation period was
tolled during [that time], then his federal habeas petition was timely filed”).

                                             6
Procedure 35, which is expressly entitled “Postconviction Remedies.” Such a

motion is sufficient to toll the one-year limitation period under 28 U.S.C.

§ 2244(d)(2). See Upshur v. Hickock , No. 99-1156, 1999 WL 710352, at *1

(10th Cir. Sept. 13, 1999) (unpublished opinion) (concluding that a Colorado

defendant’s Rule 35(b) motion tolled the AEDPA “time clock”). To hold

otherwise would raise questions of comity, because it appears that Colorado

retained jurisdiction over the case during the pendency of Martin’s Rule 35(b)

motion. See People v. Smith , 971 P.2d 1056, 1059 (Colo. 1999) (stating that

Rule 35(b) “suspends the concept of finality of a criminal judgment of

conviction” and “defines the time frame during which the sentencing court

retains jurisdiction to reconsider a sentence”) (citation and internal quotation

marks omitted). Accordingly, we REVERSE the district court’s order dismissing

Martin’s habeas petition on timeliness grounds and REMAND the case for further

proceedings consistent with this opinion.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




                                          7
