                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 22 2002
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

    RICK DEAN PETRICK,

                 Petitioner - Appellant,

    v.                                              Nos. 01-6316 & 02-6077
                                                    (D.C. No. CV-98-963-C)
    TOM C. MARTIN,                                     (W.D. Oklahoma)

                 Respondent - Appellee.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

         Petitioner Rick Dean Petrick seeks a certificate of appealability (COA) to

appeal the district court’s denial of his petition seeking habeas corpus relief


*
      This order and judgment is not binding precedent, except under the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.
which was filed pursuant to 28   U.S.C. § 2254. We determine no COA should

issue and dismiss the appeal.

      To be entitled to a COA, Mr. Petrick must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

      When the district court denies a habeas petition on procedural
      grounds without reaching the prisoner’s underlying constitutional
      claim, a COA should issue when the prisoner shows, at least, 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).

      In 1990, Mr. Petrick was convicted in state court of second-degree murder

and other charges and was sentenced to 149 years in prison. His convictions

were affirmed by the Oklahoma Court of Criminal Appeals in 1994. In 1992, he

filed his first federal habeas corpus petition challenging the delay in

consideration of his direct appeal. He later tried to supplement his petition with

other claims. In 1995, the federal district court denied his petition, dismissing

the supplemental claims without prejudice in order to permit him to file another

action to pursue those claims. This court denied issuance of a COA and

dismissed his appeal from that decision. In 1998, Mr. Petrick filed an application

for state post-conviction relief. That application was denied and the decision was




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affirmed on appeal. Mr. Petrick then filed this, his second federal habeas

petition, on July 15, 1998.

      Under AEDPA, Mr. Petrick had until April 24, 1997, to file his petition for

federal habeas relief, subject to the tolling provisions provided in 28 U.S.C.

§ 2244(d)(2). The district court held that no tolling provisions were applicable

and dismissed the petition as untimely. On appeal, a panel of this court held that

the time during which Mr. Petrick’s first federal habeas petition was pending

tolled the limitation period and remanded the case to the district court for further

proceedings. Petrick v. Martin, 236 F.3d 624, 629 (10th Cir. 2001).

      While this case was pending on remand, the Supreme Court issued       Duncan

v. Walker , 533 U.S. 167 (2001). In   Duncan , the Court held that the time a

petition seeking federal habeas review is pending does not meet the requirements

for tolling set forth in § 2244(d)(2). See id. at 181-82.

      The district court applied Duncan and determined that Mr. Petrick’s

petition was untimely and denied relief. Mr. Petrick appeals, arguing that

Duncan cannot be applied retroactively in light of the constraints set forth in

Teague v. Lane, 489 U.S. 288 (1989). We disagree.

      In Teague, the Court held that “new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before

the new rules are announced[,]” unless they fall within two exceptions. Id. at


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310-11. However, a rule is not “new” when it is based squarely on statutory

interpretation. United States v. Talk, 158 F.3d 1064, 1071 (10th Cir. 1998); see

also United States v. Shelton, 848 F.2d 1485, 1489 (10th Cir. 1988) (“statute

cannot mean one thing prior to the Supreme Court’s interpretation and something

entirely different afterwards” (quotation omitted)).

       In Duncan, the Court determined the tolling provisions of § 2244(d)(2) did

not apply to pending federal habeas petitions, contrary to our previous decision.

Duncan did not announce a new rule of constitutional law, but rather interpreted a

procedural statute. Therefore, the strictures announced in    Teague do not apply

and the district court properly applied   Duncan to this case. Mr. Petrick’s petition

is untimely.

       Mr. Petrick further argues that the district court erred in applying Duncan

because (1) it did not address all of his objections to the magistrate judge’s report

and recommendation; (2) the ex post facto doctrine and res judicata prevent the

district court from applying Duncan; (3) he was denied due process and equal

protection by the court’s application of AEDPA; (4) collateral estoppel prevents

the district court from relitigating an issue which was decided by Tenth Circuit;

and (5) the district court lacked authority and/or jurisdiction to raise the issue

that his case was untimely under AEDPA. These issues are without merit.




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       Because Mr. Petrick cannot show a COA is warranted as to whether the

district court erred in its procedural ruling, we need not examine whether a COA

should issue to determine whether reasonable jurists could debate whether he

raised a valid constitutional claim in his petition.   Cf. Paredes v. Atherton , 224

F.3d 1160, 1161 (10th Cir. 2000) (after determining reasonable jurists     could

debate whether district court was correct in its procedural ruling, court also

addressed whether reasonable jurists could debate whether petitioner had stated a

valid claim alleging denial of a constitutional right).

       The district court correctly determined that Mr. Petrick’s petition was

procedurally barred and that there was no basis for equitably tolling the running

of the period of limitation. Therefore, we DENY his application for a COA and

DISMISS this appeal. Mr. Petrick’s pending petitions seeking mandamus from

this court are DENIED.      The mandate shall issue forthwith.



                                                        Entered for the Court



                                                        Bobby R. Baldock
                                                        Circuit Judge




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