                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 13 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ALAN DAVID SWENDRA,

                Petitioner-Appellant,

    v.                                                   No. 99-1261
                                                     (D.C. No. 98-Z-2652)
    RICK SOARES; ATTORNEY                                  (D. Colo.)
    GENERAL OF THE STATE OF
    COLORADO,

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , HENRY , 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      This order and judgment is not binding precedent, except under the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.
       Petitioner seeks review of an order of the district court dismissing as

untimely his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We have

jurisdiction pursuant to 28 U.S.C. § 1291. Leave to proceed in forma pauperis is

granted. Because petitioner has failed to make a substantial showing of the denial

of a constitutional right,   see 28 U.S.C. § 2253(c)(2), we deny his request for

certificate of appealability and dismiss the appeal.

       The issue before us is whether the habeas petition filed in district court

on November 25, 1998, was timely in view of the requirement of 28 U.S.C.

§ 2244(d)(1)(A) that the petition be filed within one year of the date the state

court judgment “became final by the conclusion of direct review or the expiration

of the time for seeking such review,” as extended by the time during which a

properly filed state post-conviction action is pending.   See id. § 2244(d)(2);

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

       Petitioner’s criminal conviction became final in 1993 following the

completion of direct appeal proceedings in state court. He filed an application

for post-conviction relief under Colo. R. Crim. P. 35(c) in January of 1994.

For a variety of reasons not relevant to our disposition, this motion remained

pending for quite some time and spawned a premature habeas action filed in

federal court.   See Swendra v. Beida , No. 97-1368, 1998 WL 199656, at **1




                                             -2-
(10th Cir. Apr. 24, 1998) (dismissing petition for failure to exhaust state court

remedies) ( Swendra I ).

       On April 24, 1997, the state trial court held a hearing on petitioner’s

post-conviction motion. Petitioner, who was proceeding pro se but with advisory

counsel, tendered to the court a “Motion for Court to Determine Proper

Jurisdiction, Bounding State Court Proceedings Pursuant to Crim. P. Rule

35(c)(2)(3) to the Federal Court.”   1
                                         The state court denied the motion and offered

to set the Rule 35(c) motion for a hearing, which petitioner refused. The court

determined it lacked jurisdiction to bind the matter over to federal court and

further found that petitioner had waived his right to further pursue his state

post-conviction remedy. Although petitioner objected, he would not commit to

either withdrawing the motion or pursuing it by setting the matter for hearing.

By minute order, the court then closed the case. Appellee’s Brief, App., at 1.

       Under Colorado Appellate Rule 4(b)(1), petitioner had forty-five days in

which to appeal the state court’s order. Instead, he filed a “Motion for Free

Transcript and Written Order of April 24, 1997, Ruling.” R. Doc. 6, App. A,

which the state court granted by form order entered May 15, 1997. R. Doc. 6,



1
       Although this motion is not in the record before us, we understand it was an
attempt to “transfer” the state post-conviction proceedings to federal court (where
his federal habeas petition was then pending) because of the state court’s delay in
deciding the matter.

                                             -3-
App. B. According to petitioner, the court sent him the transcript but did not send

a written order. Petitioner did not appeal the April 24 order to the Colorado

Court of Appeals.       2
                            He also did not file a request for an extension of time in

which to appeal.    3



      In dismissing this action, the district court determined that the state

post-conviction motion was no longer pending after April 24, 1997, the point at

which “‘Swendra’s post-conviction motion in Arapahoe County had been denied

and the case closed.’” R. Doc. 9 at 6 (quoting          Swendra I , 1998 WL 199656,

at **1). The federal habeas petition was filed approximately nineteen months

later, well beyond the one-year limitation period of § 2244(d).

      Petitioner was present at the state court hearing on April 24, 1997, when he

was advised he had waived his right to further pursue state post-conviction relief

by adamantly refusing to go forward with a hearing. He had forty-five days to

appeal that decision in order to continue the tolling provision of § 2244(d)(2).

Having elected not to further pursue state appellate remedies, he was subject to

the limitations period of § 2244(d)(1)(A).


2
      Under Colorado Appellate Rule 3(g)(7) it appears that a copy of the minute
order would have sufficed as “a copy of the judgment or order being appealed.”
3
      Under Colorado Appellate Rule 4(b)(1), the appellate court can, on a
showing of excusable neglect, extend the time to file a notice of appeal for thirty
days with or without motion and notice and before or after the time for appealing
has expired.

                                                -4-
      We therefore conclude the district court correctly dismissed the petition

as time-barred. Accordingly, the certificate of appealability is DENIED, and

the appeal is DISMISSED.



                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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