                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           July 18, 2005
                                TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 JOHN ALLEY,

       Petitioner-Appellant,
 v.                                                       No. 05-2093
 JAMES JANECKA, Warden, Lea                       (D.C. No. 04-881 WJ/RHS)
 County Correctional Facility, and THE                    (D.N.M.)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

       Respondents-Appellees.




                                      ORDER


Before BRISCOE, LUCERO,          and MURPHY , Circuit Judges.


      Petitioner John Alley, a New Mexico state prisoner appearing pro se, seeks

a certificate of appealability (COA) in order to challenge the district court's

dismissal of his 28 U.S.C. § 2254 habeas petition on statute of limitations

grounds. Because we conclude jurists of reason would not find debatable the

district court’s procedural dismissal of Alley’s petition, Slack v. McDaniel, 529

U.S. 473, 478 (2000), we deny his application for a COA and dismiss this appeal.

                                          I

      Alley was convicted in a New Mexico state court of seven criminal counts
on March 10, 2001. The New Mexico Court of Appeals (NMCA) affirmed his

convictions on February 11, 2002, and issued its mandate on March 26, 2002. On

September 22, 2002, Alley submitted a petition for a writ of certiorari to the New

Mexico Supreme Court (NMSC). One month later, on October 24, 2002, Alley

submitted to the NMSC a motion to accept his petition as timely filed. On

October 28, 2002, the NMSC denied Alley’s petition and motion.

        On January 10, 2003, Alley filed a petition for a writ of mandamus,

requesting that his attorney be ordered to file a petition for writ of certiorari in

the NMSC. The NMSC denied the petition for writ of mandamus on January 28,

2003. On April 29, 2003, Alley filed a petition for a writ of habeas corpus in the

NMCA. The NMCA denied this petition on May 14, 2003. Alley then filed a

petition for a writ of certiorari with the NMSC on June 2, 2003, which was denied

on August 4, 2003. Alley filed a motion for reconsideration of his sentence in

state district court on December 4, 2003, which was denied on December 10,

2003.

        On August 4, 2004, Alley filed a petition for writ of habeas corpus in

federal court pursuant to 28 U.S.C. § 2254. Pursuant to the magistrate judge’s

recommendation, the district court dismissed the petition as untimely. The

district court subsequently declined to grant Alley a COA. Accordingly, Alley

has filed an application for COA with this court.


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                                            II

       In order to receive a COA on a procedural issue, Alley must show both

“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,

529 U.S. at 484. For the reasons discussed below, Alley cannot meet the second

of these criteria.

       Pursuant to 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 the judgment of a State court.” The one year limitation period runs

“from the latest of” the following dates:

       (A) the date on which the judgment became final by the conclusion
       of direct review or the expiration of the time for seeking such
       review;
       (B) the date on which the impediment to filing an application created
       by State action in violation of the Constitution or laws of the United
       States is removed, if the applicant was prevented from filing by such
       State action;
       (C) the date on which the constitutional right asserted was initially
       recognized by the Supreme Court, if the right has been newly
       recognized by the Supreme Court and made retroactively applicable
       to cases on collateral review; or
       (D) the date on which the factual predicate of the claim or claims
       presented could have been discovered through the exercise of due
       diligence.

Id. The running of the limitations period is tolled for “[t]he time during which a

properly filed application for State post-conviction or other collateral review with

                                            3
respect to the pertinent judgment or claim is pending . . . .” 28 U.S.C. §

2244(d)(2).

      The government asserted below that Alley’s one-year limitations period

began to run on May 12, 2002. In turn, the government calculated the tolled

period during the pendency of Alley’s petition for writ of mandamus and state

habeas corpus petitions to be approximately 115 days. The government excluded

from its tolling calculation Alley’s request to file an untimely writ of certiorari

with the NMSC and his motion for reconsideration of his sentence. Assuming a

mailing date of July 23, 2004, the government argued Alley filed his federal

habeas petition approximately three hundred and twenty days beyond the

expiration of the limitations period.

      Responding to the government’s argument, Alley argued that for seven

months his counsel refused to file a petition for writ of certiorari with the NMSC.

Alley indicated he did not become aware of his appellate counsel’s failure to

perfect his appeal until late July or early August 2002. He, therefore, argued this

seven month time period should not be counted against him.

      The magistrate judge determined that even if Alley’s statute of limitations

did not begin to run until January 28, 2003 (corresponding with the NMSC’s

denial of his request to compel his counsel to file a petition for certiorari), Alley’s

federal habeas petition was still untimely. According to the magistrate judge,


                                           4
absent any tolling, Alley’s federal habeas petition would had to have been filed by

January 27, 2004 to be timely. The magistrate judge determined the pendency of

Alley’s state habeas petitions would have tolled the limitations period and

extended the deadline approximately one hundred and twenty five days to May 30,

2004. 1 Thus, even assuming his habeas petition was mailed on July 23, 2004,

Alley’s federal habeas petition was untimely by almost two months.

      In his application for COA, Alley notes the NMCA issued its opinion on

February 11, 2002, but he was led to believe by his appellate counsel for

approximately seven months and eight days that a petition for a writ of certiorari

had been filed with the NMSC. He notes a public defenders’ office and a

disciplinary board concluded his counsel should have filed a timely petition for

writ of certiorari with the NMSC. He, therefore, contends this period of seven

months and eight days should not be counted against him.

      The district court did not count this seven month and eight day time period

against Alley. The magistrate judge assumed arguendo the correctness of Alley’s

position. As for the court’s reference to Alley being three hundred twenty days

late on filing his habeas petition, that was merely a recitation of the government’s


      1
        The magistrate judge did not include Alley’s motion for reconsideration of
his sentence because it was not properly filed. Even if this time period was added
to the calculation, it would add little to the tolled time period as Alley filed the
motion for reconsideration of his sentence on December 4, 2003, and the New
Mexico state district court denied the motion on December 10, 2003.

                                         5
argument, and not the court’s determination.

      The district court started the statute of limitations clock even later than the

date proposed by Alley. The magistrate judge recommended and the district court

adopted an analysis which concluded the statute of limitations did not begin to

run until January 28, 2003, when the NMSC rejected Alley’s request to compel

his appellate counsel to file a writ of certiorari before the NMSC.

      Alley insists his petition was filed within the one year statute of limitations

period. Alley notes he filed multiple petitions and motions before the New

Mexico state courts arguing his conviction was unconstitutional. The district

court accounted for these multiple filings and still determined Alley’s habeas

petition was untimely. Alley fails to establish how the district court erred in this

determination. 2

      Accordingly, the request for a COA is DENIED and the appeal is

DISMISSED.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge


      2
        In his application for COA, Alley complains that the district court failed
to address the merits of the issues he raised in his habeas petition. The district
court declined to address the merits because it found his habeas petition to be
time-barred. Unless the district court erred in determining Alley’s habeas petition
was time-barred, the court did not err by declining to consider the merits of
Alley’s habeas petition.

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