                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              DEC 2 2004
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 RICHARD AYALA,

               Petitioner-Appellant,                       No. 04-6215
          v.                                       Western District of Oklahoma
 RANDALL G. WORKMAN,                                 (D.C. No. 04-CV-433-F)

               Respondent-Appellee.


                                       ORDER *


Before EBEL , MURPHY , and McCONNELL , Circuit Judges.


      Richard Ayala, a state prisoner proceeding     pro se , seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

which denied his habeas corpus petition under 28 U.S.C. § 2254.        See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Ayala has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                           I.

      In 1994, Mr. Ayala was convicted by jury in Oklahoma state court of two

counts of first degree felony murder and one count of conspiracy to commit

kidnaping and armed robbery. He was sentenced to two concurrent terms of life

without parole on the murder counts, to run consecutively to a ninety-nine year

term on the conspiracy count. The Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed Mr. Ayala’s convictions on June 5, 1996.

      Nearly seven years later, Mr. Ayala filed a   pro se application for post-

conviction relief in state district court, alleging he was denied effective assistance

of counsel at trial. The court denied Mr. Ayala’s application because he failed to

raise his ineffective assistance claim on direct appeal. The OCCA affirmed on

January 14, 2004.

      In April 2004, Mr. Ayala filed a habeas corpus petition under 28 U.S.C. §

2254 in the United States District Court for the Western District of Oklahoma,

again alleging ineffective assistance of trial counsel. The district judge referred

Mr. Ayala’s petition to a magistrate judge, who recommended it be dismissed as

untimely. After reviewing Mr. Ayala’s objections to the magistrate judge’s

report, the district judge adopted the magistrate judge’s recommendations and

dismissed Mr. Ayala’s petition. Mr. Ayala then filed a motion to alter or amend

judgment, which the district court denied. This appeal followed.


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                                            II.

      Mr. Ayala raises four claims in his petition for a COA. First, he alleges the

district court failed to review his objections to the magistrate judge’s report and

recommendation as 28 U.S.C. § 636(b)(1) requires. Second, he claims the district

court abused its discretion when it denied his motion to alter or amend the

judgment. Third, he asserts jurists of reason would find it debatable whether his

habeas petition states a valid claim of the denial of a constitutional right. Finally,

he alleges jurists of reason would find it debatable whether the district court’s

procedural ruling was correct.

                                            A.

      Mr. Ayala’s first claim—that the district court failed to make a de novo

review of his objections to the magistrate judge’s report—is meritless. Under 28

U.S.C. § 636(b)(1), a district court judge must “make a de novo determination of

those portions of the [magistrate judge’s] report . . . or recommendations to which

objection is made.” “[T]he district court is presumed to know that de novo

review is required. Consequently, a brief order expressly stating the court

conducted de novo review is sufficient.”     Northington v. Marin , 102 F.3d 1564,

1570 (10th Cir. 1996).

      The district court’s order expressly notes Mr. Ayala “has objected to the

Report and the court considers the matter    de novo .” Doc. 12 at 1. The district


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court adopted the magistrate judge’s report and recommendation “after [a] careful

study of [Mr. Ayala’s] objections, the Report, the record, and the relevant legal

authorities.”   Id. at 2. Because the district court complied with 28 U.S.C. §

636(b)(1), this allegation forms no basis for relief.

                                           B.

       We next address Mr. Ayala’s claim that reasonable jurists would find it

debatable whether the district court erred by dismissing his habeas petition on

statute of limitations grounds. We conclude “jurists of reason would [not] find”

this procedural ruling debatable,   Slack v. McDaniel , 529 U.S. 473, 484 (2000),

and thus affirm.

       Mr. Ayala, as a state prisoner, sought federal habeas relief under 28 U.S.C.

§ 2254. The one-year statute of limitations period that 28 U.S.C. § 2244(d)(1)

imposes on § 2254 actions begins to run “from the latest of” these four triggering

events:

       (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


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       (D) the date on which the factual predicate of the claim or claims
       presented could have been discovered through the exercise of due
       diligence.

28 U.S.C. § 2244(d)(1)(A)–(D).

       Mr. Ayala insists § 2244(d)(1)(C) applies, claiming the United States

Supreme Court’s holding in     Massaro v. United States , 538 U.S. 500 (2003),

“constitutes a ‘newly recognized right’ which did not exist at the time [his]

conviction became final, and therefore, because [Mr. Ayala] filed his habeas

petition within one year of the date of this decision, the petition was timely filed.”

Appellant’s Br. at 16.d. We disagree.

       Mr. Ayala bases his habeas petition on a claim of ineffective assistance of

trial counsel. The Supreme Court recognized a criminal defendant’s Sixth

Amendment right to effective assistance of counsel several decades ago.         See,

e.g. , McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970) (“It has long been

recognized that the right to counsel is the right to the effective assistance of

counsel.”). Twenty years ago, the Court announced in          Strickland v. Washington ,

466 U.S. 668, 687 (1984), that an accused was deprived of this right only if

“counsel’s performance was deficient” and “the deficient performance prejudiced

the defense.”

       Contrary to Mr. Ayala’s claim,    Massaro did not alter or clarify   Strickland’s

ineffective assistance of counsel standard.         Massaro addressed whether the


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“procedural default rule” that “claims not raised on direct appeal may not be

raised on collateral review unless the petitioner shows cause and prejudice”

applied to a federal prisoner’s ineffective assistance claims. 538 U.S. at 504.

The Court found this appeal-it-or-lose-it rule, which “is neither a statutory nor a

constitutional requirement,” did not apply to a federal inmate’s ineffective

assistance claims; instead, the “better-reasoned approach is to permit ineffective-

assistance claims to be brought in the first instance in a timely motion in the

district court under § 2255.”   Id. Simply put, Massaro addressed when and in

what forum federal inmates may raise ineffective assistance claims, not      what an

inmate must prove to substantiate them. Accordingly,        Massaro announces a

federal procedural rule, not a “newly recognized” constitutional right.      See also

Sweet v. Bennett , 353 F.3d 135, 140 (2d Cir. 2003) (“    Massaro is not a

constitutional decision, and by its own language it did not extend its rule beyond

§ 2255.”); Gomez v. Jaimet , 350 F.3d 673, 678 (7th Cir. 2003) (“[T]he holding of

Massaro is not legally binding on states.    Massaro was not a constitutional

decision.”); McDonough v. State , 675 N.W.2d 53, 56 n.3 (Minn. 2004) (“The rule

in Massaro does not bind this court because the decision is not based on

constitutional requirements; rather it is based on public policy concerns.”). Thus,

Massaro does not trigger a new one-year limitations period for Mr. Ayala under §

2244(d)(1)(C).


                                            -6-
       Mr. Ayala does not allege the State unlawfully prevented him from filing

his petition, or that despite his due diligence, he could not have discovered the

basis for his ineffective assistance claims any earlier than 2003. Thus, 28 U.S.C.

§ 2244(d)(1)(B) and (D) are inapplicable. That leaves 28 U.S.C. § 2244(d)(1)(A),

which provides that a habeas petition is timely if it is filed within one year of “the

date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.”      Id. A conviction is “final” for

purposes of this statute—and thus the one-year period begins to run—when,

“following a decision by the state court of last resort . . . the United States

Supreme Court has denied review, or, if no petition for certiorari is filed, after the

time for filing a petition for certiorari with the Supreme Court has passed.”     Locke

v. Saffle , 237 F.3d 1269, 1273 (10th Cir. 2001) (internal quotation marks

omitted).

       The OCCA affirmed Mr. Ayala’s convictions on direct appeal on June 5,

1996. Appellant’s Br. at 15. He then had ninety days to file a certiorari petition

with the United States Supreme Court.       See 28 U.S.C. § 2101(c). When this

period expired on September 3, 1996, Mr. Ayala’s petition became “final” for

purposes of § 2244(d)(1)(A). He then had one year to timely file a habeas

petition. He commenced this action in April 2004, well outside the one-year

period. Mr. Ayala’s petition therefore was untimely as a matter of law. Thus,


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Mr. Ayala has not demonstrated “that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling,”    Slack , 529 U.S. at

484, and he is not entitled to a COA under 28 U.S.C. § 2253(c)(2) based on the

district court’s procedural ruling.

                                             C.

       Because we affirm the disposition of Mr. Ayala’s case on procedural

grounds, we need not reach the merits of his substantive argument or his claim

that the district court abused its discretion when it denied his motion to alter or

amend judgment.

       Accordingly, we DENY Richard Ayala’s request for a COA and             DISMISS

this appeal.

       Petitioner’s motion to proceed     in forma pauperis is also DENIED .

                                                   Entered for the Court,

                                                   PATRICK FISHER, Clerk




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