                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                             July 1, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                            Clerk of Court
                                     TENTH CIRCUIT


 CALVIN DEAN PETERS,

                Petitioner - Appellant,

 v.                                                             No. 08-2247
                                                   (D. Ct. No. 6:07-CV-01301-BB-ACT)
 MICHAEL HEREDIA, Warden; GARY                                  (D. N. Mex.)
 K. KING, Attorney General of the State of
 New Mexico,

                Respondents - Appellees.


             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


       Calvin Dean Peters, a New Mexico state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C.

§ 2254 petition, construed as a petition properly brought pursuant to 28 U.S.C. § 2241.

We also construe the petition as properly brought pursuant to 28 U.S.C. § 2241, DENY a

COA, and DISMISS this appeal.

       As an initial matter, we must address the question of timeliness of the notice of

appeal. See United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004)

(filing a timely notice of appeal is a prerequisite to our jurisdiction). The district court

denied Mr. Peters’s § 2254 petition on September 2, 2008. Pursuant to Fed. R. App. P.
4(a)(1)(A), Mr. Peters had thirty days—until October 2, 2008—to file his notice of

appeal. His notice of appeal was not filed until October 6. Although his notice of appeal

includes a certificate of service stating, under penalty of perjury, that the notice of appeal

was mailed to the Attorney General on October 2, 2008, it does not state that the notice

was also mailed to the district court on that date and that first class postage was prepaid.

See id. (appellant not entitled to benefit of the prison mail-box rule where his notice of

appeal did not include “a declaration in compliance with 28 U.S.C. § 1746 or notarized

statement setting forth the notice’s date of deposit with prison officials and . . . a

statement that first-class postage was pre-paid,” and where appellant had not

“subsequently filed such a form in compliance with Rule 4(c)(1).”). See also Price v.

Philpot, 420 F.3d 1158, 1165–67 (10th Cir. 2005) (appellant could establish timely filing

by either alleging and proving that he or she made timely use of prison’s legal mail

system or by providing “a notarized statement or a declaration under penalty of perjury of

the date on which the documents were given to prison authorities and attesting that

postage was prepaid.”).

       This court issued an order directing Mr. Peters to show cause why his appeal

should not be dismissed as untimely. Mr. Peters filed a response that, liberally construed,

states that he deposited his notice of appeal in the prison mail system on October 2 and

that first class postage was paid. We find that under the prison mail rule, Mr. Peters

showed substantial compliance. Therefore, we take jurisdiction to determine whether a

COA should issue.

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       In his pro se application to this court, Mr. Peters reiterates the basis for his request

for a COA. As he did in the district court, he argues that his constitutional rights to due

process of law were violated during prison disciplinary proceedings that occurred in 1997

and 1999. Both of these proceedings resulted in the loss of good-time credit as well as

disciplinary segregation. Mr. Peters sought a writ of habeas corpus in the state courts of

New Mexico from 2001 to 2007 at which time all relief was denied by the state courts.

The New Mexico Supreme Court dismissed the action in 2007 for failure to perfect a

timely appeal to that court. This federal action followed.

       We agree with the magistrate judge and district court that this petition is properly

construed as a challenge to the execution of Mr. Peters’s sentence rather than the fact of

his conviction. It should therefore be brought under 28 U.S.C. § 2241 rather than 28

U.S.C. § 2254. We so construe the petition. The result, however, is no different under

either provision.

       When a habeas petition is denied on procedural grounds, the petitioner must

demonstrate “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 v.

McDaniel, 529 U.S. 473, 484 (2000). Whether brought under § 2241 or § 2254, a state

prisoner bringing a federal habeas petition bears the burden of showing he has exhausted

state remedies. Montez v. McKenna, 208 F.3d 862, 866 (10th Cir. 2000). Mr. Peters has

failed to make this showing. We have clearly held that a state prisoner does not fully

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exhaust state remedies without timely seeking certiorari review with the state supreme

court. Barnett v. LeMaster, 167 F.3d 1321, 1323 (10th Cir. 1999). The Supreme Court of

New Mexico dismissed the state court action for failure to perfect the appeal in that court.

Mr. Peters therefore cannot demonstrate that he has exhausted his state remedies.

       When a state petitioner has failed to exhaust his state remedies, a court will

generally dismiss the petition without prejudice to allow the petitioner to exhaust state

remedies. Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997). This disposition “is

not appropriate if the state court would now find the claims procedurally barred on

independent and adequate state procedural grounds.” Smallwood v. Gibson, 191 F.3d

1257, 1267 (10th Cir. 1999). When the New Mexico Supreme Court denies a petition as

untimely, without considering the merits, it is an independent and adequate state ground

for denying relief. See Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir. 1993). In

addition, the magistrate judge in this matter thoroughly considered whether Mr. Peters

had put forth any grounds that would excuse or show cause for his default in the state

courts and found no adequate excuse for the failure nor any basis for finding a

miscarriage of justice. We conclude that reasonable jurists could not disagree that Mr.

Peters is procedurally barred from raising the issues put forth in this federal habeas




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petition. Therefore, we deny the application for a COA and DISMISS the appeal.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Circuit Judge




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