                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 17 1999
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                Clerk

 DANIEL E. ADAMS,

                Petitioner - Appellant,                    No. 98-2222
           v.                                            D. New Mexico
 TIM LEMASTER, Warden;                             (D.C. No. CIV-97-1017-JP)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

                Respondents - Appellees.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , 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). This cause 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       This order and judgment is not binding precedent, except under the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.
       Daniel Adams appeals the district court’s denial of a certificate of

appealability, which followed its order dismissing his habeas petition. He also

makes a separate application to this court for a certificate of appealability. For

the reasons below, we vacate the district court order dismissing Adams’ petition

and remand for further proceedings.

       Adams’ New Mexico conviction became final on appeal in January 1988.

Later that same year, Adams’ first state habeas petition was denied. He filed a

second state habeas petition in April 1997. The notarized certificate of service by

mail accompanying the petition was dated April 12, 1997, and the state court

stamped the petition filed on April 22, 1997. Adams apparently timed this filing

in an attempt to toll the April 24, 1997 deadline under 28 U.S.C. § 2244(d) for

filing his 28 U.S.C. § 2254 federal habeas petition.   See Miller v. Marr , 141 F.3d

976, 977 (10th Cir.) (citing   United States v. Simmonds , 111 F.3d 737, 746 (10th

Cir. 1997)), cert. denied , 119 S. Ct. 210 (1998). This second state petition was

dismissed with prejudice on June 13, 1997. Adams then applied to the New

Mexico Supreme Court for certiorari, in a filing the court received on July 9,

1997. On July 21, 1997, the court denied this petition. Adams then filed his

federal § 2254 petition, which the district court received on August 1, 1997.

       On August 8, 1997, the magistrate judge to whom the § 2254 petition was

referred ordered the state to respond. After two extensions of time, on October


                                            -2-
24, 1997, the state filed a response that claimed (without argument) that Adams’

petition was untimely under 28 U.S.C. § 2244(d). Attached to this response were

numerous appendices, including a copy of Adams’ state habeas petition and

notarized certificate of service by mail dated April 12, 1997.

      On June 30, 1998, the magistrate judge submitted a report recommending

that Adams’ federal petition be denied as untimely. The magistrate judge

determined that under § 2244(d)(2),   1
                                          the Simmonds deadline was tolled during the

pendency of Adams’ state court habeas petition; however, he found that

      Petitioner filed his second state  habeas petition on April 22, 1997.
      Since the one-year grace period ended on April 24, 1997 and
      Petitioner initiated his state habeas petition two days before that
      deadline, he had two days from the date of the exhaustion of his state
      proceedings to file his federal habeas petition. See Healy [ v.
      DiPaolo , 981 F. Supp. 705, 707 (D. Mass. 1997)]. That two day
      period expired in the interim between the denial of Petitioner’s state
      habeas petition on June 13, 1997 and the filing of his petition for
      writ of certiorari with the New Mexico Supreme Court on July 9,
      1997. Alternatively, that two day period expired following the denial
      of his petition for writ of certiorari but before he filed this §2254
      action. Accordingly, this petition is time barred.

R. Vol. I, Tab 18, at 6.

      Adams filed timely objections to the magistrate judge’s report. He alleged,

inter alia, that he mailed his state habeas petition on April 12, 1997, and that on


      1
       “The time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under this
subsection.” 28 U.S.C. § 2244(d)(2).

                                             -3-
April 16, 1997, his case worker verified by telephone that the district court had

received it. Based on these allegations, he invoked the rule of    Houston v. Lack ,

487 U.S. 266 (1988), arguing that his petition should be deemed filed on the date

he delivered it to prison authorities for mailing. He contended that the April 12

mailing gave him eleven days of tolling before April 23, 1997 (the last day of the

Simmonds grace period, see Simmonds , 111 F.3d at 746 (requiring petitions to be

filed “ before April 24, 1997” (emphasis added))), and that this meant he had

eleven days to file his federal petition after the state supreme court denied

certiorari on July 21, 1997. He further alleged that he had mailed his federal

petition on “July 30, 1007[sic],” and he argued that therefore    the petition was

timely. R. Vol. I, Tab 21 ¶ 3.

       On August 10, 1998, the district court issued a one-page order adopting the

magistrate judge’s report and dismissing Adams’ petition. In its order the court

noted that “objections to the proposed findings and recommended disposition

hav[e] been filed, and the Court ha[s] made a     de novo determination of the

Magistrate Judge’s proposed findings and recommended disposition.” R. Vol. I,

Tab 22. Adams filed a notice of appeal, and the district court denied a certificate

of appealability.

       The magistrate judge was correct in noting the applicability of § 2244(d)(2)

to toll the Simmonds grace period. See Hoggro v. Boone , 150 F.3d 1223, 1226


                                            -4-
(10th Cir. 1998). However, in light of our recent cases in this unsettled area of

the law, we conclude that there are two problems with the district court’s reliance

on the magistrate judge’s report. First, the magistrate judge was incorrect in

concluding that there was no tolling for the period between the initial denial of

Adams’ state habeas petition and the filing of his application for certiorari with

the New Mexico Supreme Court. The magistrate judge did not have the benefit of

our recent opinion in Barnett v. LeMaster , No. 98-2139, slip. op. (10th Cir.

Feb. 9, 1999), where we explained that the time tolled under § 2244(d)(2)

encompasses all periods during which a prisoner is properly attempting to exhaust

state post-conviction remedies, including the interim between the denial of a state

habeas petition and the filing of a proper petition for certiorari before the state

supreme court.   See also Morris v. Hargett , No. 98-6194, 1998 WL 786917, at *1,

3 (10th Cir. Nov. 10, 1998) (applying § 2244(d)(2) tolling to a similar interim

period). Here, tolling did not end until the denial of certiorari on July 21, 1997.

      Second, neither the magistrate judge nor the district court addressed

Adams’ claims under Houston v. Lack , which, if meritorious, are dispositive of

the timeliness issue in Adams’ favor.   2
                                            In a recent case, we allowed for the


      2
       This must be attributed in part to the fact that the state, which is
presumably aware of the prison mailing/filing rule, never referred to the rule and
did not attempt to assist the court by addressing a point which was obviously
relevant in view of the date on the certificate of service attached to Adams’
                                                                        (continued...)

                                             -5-
possibility that the mailbox rule of   Houston v. Lack applies, for purposes of §

2244(d)(2) tolling, to filings of state habeas petitions.        Moore v. Ward , No. 98-

6263, slip. op. (10th Cir. Feb. 3, 1999). However, we have never squarely

addressed the issue, and we leave it to the district court to decide here. If

Houston v. Lack does apply, and if, as Adams alleges, he mailed his state habeas

petition on April 12, 1997, he had eleven days of tolling before April 23, 1997,

the last day of the Simmonds grace period. This would mean that after the denial

of his state habeas petition became final on July 21, 1997, he had at least until

August 1, 1997, to file his federal habeas petition (which in any event was

received by the district court on August 1, 1997). We note further that neither the

district court nor the magistrate judge made any findings under          Houston v. Lack

as to the filing of Adams’ § 2254 petition, which Adams claims he mailed on July

30, 1997.

       We do not intend to express any opinion on the merits of Adams’ timeliness

claims. If the district court determines that         Houston v. Lack does apply here, it

must then decide as a factual matter when Adams actually delivered his petition to




       (...continued)
       2

second state habeas petition.

                                                -6-
prison authorities for mailing, taking into account the certificate of service dated

April 12, 1997,   3
                      and any other appropriate evidence.   4



      Accordingly, we GRANT the certificate of appealability, VACATE the

district court’s order, and REMAND this case for further proceedings.

                                                     ENTERED FOR THE COURT



                                                     Stephen H. Anderson
                                                     Circuit Judge




      3
        Although many of our cases applying Houston v. Lack are unpublished, in
at least one instance we found a proper certificate of service to be relevant proof
of delivery to prison officials. See United States v. Warner, No. 94-3270, 1995
WL 307586, at *1 (10th Cir. May 11, 1995). Of course, the date of delivery to
prison authorities is always a fact question, decided on a case-by-case basis.
      4
          See Houston, 487 U.S. at 275:

      [T]he rejection of the mailbox rule in other contexts has been based
      in part on concerns that it would increase disputes and uncertainty
      over when a filing occurred and that it would put all the evidence
      about the date of filing in the hands of one party. . . . [P]rison
      authorities . . . have well-developed procedures for recording the date
      and time at which they receive papers for mailing and . . . can readily
      dispute a prisoner’s assertions that he delivered the paper on a
      different date.

Cf. Holmes v. Newland, No. C 97-3563 TEH PR, 1998 WL 730884 (N.D. Cal.
Oct. 13, 1998) (finding prisoner’s allegations of timely filing rebutted by
documentary evidence of prison mail handling procedures).

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