                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 16 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


EDDIE TAFOYA,

          Petitioner-Appellant,

v.
                                                        No. 02-2132
                                                 (District of New Mexico)
JOE WILLIAMS, Warden, Lea County
                                              (D.C. No. CIV-01-581-WJ/DJS)
Correctional Facility; ATTORNEY
GENERAL FOR THE STATE OF
NEW MEXICO,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY, 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       This order and judgment is not binding precedent, except under the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.
       This case is before the court on a request by Eddie Tafoya for a certificate

of appealability (“COA”). Tafoya seeks a COA so he can appeal the district

court’s dismissal of his 28 U.S.C. § 2254 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). On July 9, 1997, Tafoya

pleaded guilty to second degree murder, attempt to commit first degree murder,

two counts of negligently-caused child abuse resulting in no great bodily harm,

and aggravated assault with a deadly weapon. He was sentenced to a 498-month

term of imprisonment. Tafoya filed various post-conviction motions in New

Mexico state court, all of which were denied. Tafoya then filed a federal habeas

corpus petition pursuant to 28 U.S.C. § 2254. In his § 2254 petition, Tafoya

raised several ineffective assistance of counsel claims.

       Respondent filed a Motion to Dismiss, asserting that Tafoya’s § 2254

petition was untimely under the Antiterrorism and Effective Death Penalty Act of

1996. See 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 a

judgment of a State court.”). After Tafoya responded to the Motion to Dismiss,

the magistrate judge prepared a report recommending that Tafoya’s § 2254

petition be dismissed as untimely. The district court adopted the magistrate’s

recommendation and dismissed the petition with prejudice.


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       In his appellate brief, Tafoya does not argue that the district court

miscalculated the one-year limitation period. Instead, he argues that the one-year

period should be equitably tolled because he is actually innocent of one of the

charges to which he pleaded guilty.     See Gibson v. Klinger , 232 F.3d 799, 808

(10th Cir. 2000) (“Equitable tolling would be appropriate, for example, when a

prisoner is actually innocent . . . .”). Tafoya contends that the crime of attempt to

commit first degree murder does not exist under New Mexico law and, thus, he is

actually innocent of that crime. Even assuming that Tafoya’s assertions relate to

actual innocence as opposed to factual innocence, his argument fails. The New

Mexico Court of Appeals has held that the crime of attempted first degree felony

murder does not exist under New Mexico law.             See State v. Price , 726 P.2d 857,

858-60 (N.M. Ct. App.1986). That court has also held that the crimes of

attempted depraved mind murder and attempted unintentional second degree

murder likewise do not exist.    See State v. Johnson , 707 P.2d 1174, 1179, 1180

(N.M. Ct. App. 1985). Tafoya, however, was indicted and convicted of “attempt

to commit a felony, to wit: first degree murder willful and deliberate.”

Consequently, neither of these New Mexico cases provides support for Tafoya’s

argument.

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

brief, and the entire record on appeal. That         de novo review clearly demonstrates


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the district court’s dismissal of Tafoya’s § 2254 petition as untimely is not

deserving of further proceedings or subject to a different resolution on appeal.

Accordingly, this court   denies Tafoya’s request for a COA for substantially those

reasons set forth in the magistrate judge’s report and recommendation dated April

8, 2002 and the district court’s order dated May 6, 2002 and   dismisses this

appeal.

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge




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