                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 23 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ANDREW MICHAEL
    SANTILLANES,

                Petitioner-Appellant,

    v.                                                  No. 00-2172
                                               (D.C. No. CIV-97-549-LH/LFG)
    TIM LEMASTER, Warden;                                 (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.


                            ORDER AND JUDGMENT           *




Before EBEL , PORFILIO , and LUCERO , Circuit Judges.



         Petitioner-Appellant Andrew Michael Santillanes appeals from the district

court’s order denying his petition for writ of habeas corpus. This matter comes

before us on petitioner’s request for a certificate of appealability (COA).




*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
       In order to receive a COA, petitioner must make a “substantial showing of

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

this standard if he shows that his issues “are debatable among jurists, or that

a court could resolve the issues differently, or that the questions deserve further

proceedings.” United States v. Sistrunk , 111 F.3d 91, 91 (10th Cir. 1997). To the

extent petitioner attacks the district court’s procedural rulings, he must show both

“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). Upon consideration, we grant COA but

affirm the district court’s order denying habeas relief.

       Petitioner was convicted after a jury trial of first degree felony murder and

two counts of attempted armed robbery. The New Mexico Supreme Court

affirmed his conviction in 1986. Thereafter, he filed three state habeas petitions,

asserting a variety of grounds for relief, each of which was denied by the

New Mexico courts.    1



       In his third petition, petitioner raised two issues. He contended: (1) that the

prosecution had unconstitutionally failed to disclose evidence favorable to him;


1
      Petitioner also filed a previous habeas petition in federal district court,
which was dismissed as a mixed petition to allow petitioner to exhaust his state
remedies. See Rose v. Lundy , 455 U.S. 509 (1982).

                                             -2-
and (2) that he was denied effective assistance of counsel at trial and on appeal.

The state district court denied this petition on February 21, 1997. Petitioner

attempted to file a petition for writ of certiorari in the New Mexico Supreme

Court within the thirty days allowed. The certiorari petition was due on

March 24, 1997, but was not received by the supreme court until April 1, 1997.

An employee of the Supreme Court clerk’s office returned the petition unfiled,

because she had received it after the deadline.

       Petitioner asserts that he placed his petition in the prison legal mailbox five

days prior to the expiration of the thirty-day filing deadline. However, it was not

even postmarked until nine days later, after the deadline had passed. He

thereafter filed this petition for writ of habeas corpus in federal district court,

raising the same claims raised in his third state habeas petition. After an

evidentiary hearing, the district court ruled that petitioner had procedurally

defaulted his claims by failing to raise them on a timely basis to the New Mexico

Supreme Court. The district court determined that New Mexico would not

follow the “mailbox rule” established for the federal courts in   Houston v. Lack ,

487 U.S. 266 (1988).

       Petitioner contests this determination. He contends that his ineffective

assistance of counsel claims have not been procedurally defaulted. Alternatively,

he argues that his procedural default should be excused.


                                            -3-
       Resolution of petitioner’s arguments requires us to consider four distinct

procedural issues. The first is, whether New Mexico follows or would adopt the

mailbox rule in determining the timeliness of petitions for certiorari from the

denial of habeas petitions. The second question is whether New Mexico’s

enforcement of its thirty-day filing deadline constituted an independent and

adequate state ground for rejecting petitioner’s petition. If so, the third issue is

whether petitioner can show cause and prejudice sufficient to excuse the

procedural default. Finally, we take up the issue of whether petitioner has made

a colorable showing of actual innocence sufficient to excuse his procedural

default. In assessing petitioner’s claims, “[w]e review the district court’s legal

conclusions de novo and its factual findings under the clearly erroneous

standard.” Ross v. Ward , 165 F.3d 793, 798 (10th Cir. 1999).

       1. Would New Mexico adopt the mailbox rule for certiorari petitions?

       In Houston v. Lack , the Supreme Court held that a prisoner’s “notice of

appeal was filed at the time [the prisoner] delivered it to the prison authorities for

forwarding to the court clerk.”   Houston , 487 U.S. at 276. This rule became

known as the “prison mailbox rule” or simply the “mailbox rule.”      Houston was

based on language of a Federal Rule of Appellate Procedure governing timely

notice of appeal. While some states have adopted a similar rule as a matter of

state law, others have not.


                                          -4-
       We previously considered the mailbox rule under New Mexico law

in Adams v. LeMaster , 223 F.3d 1177 (10th Cir. 2000),        cert. denied , 121 S. Ct.

1198 (2001). There, we addressed New Mexico court rules pertaining to

post-conviction habeas proceedings and held that “the New Mexico Supreme

Court would side with those state courts relying on the plain meaning of their

respective state procedural rules to reject the prison mailbox rule.”      Id. at 1183.

       Petitioner attempts to distinguish    Adams . He points out that Adams was

concerned with when a habeas corpus petition was “properly filed” in state

district court for purposes of 28 U.S.C. § 2244(d)(1). Here, by contrast, we are

concerned with whether the mailbox rule applies to the filing of a petition for writ

of certiorari to the New Mexico Supreme Court. We acknowledge that different

courts within a state system may treat the mailbox rule differently.      See, e.g. ,

Hunnicutt v. State , 952 P.2d 988, 989 (Okla. Crim. App. 1997) (refusing, in

appeal to Oklahoma Court of Criminal Appeals, to follow mailbox rule adopted

by Oklahoma Supreme Court which rested on special statute applicable only to

appeals to that court).

       Although it was not specifically at issue in    Adams , we also had occasion to

discuss application of the mailbox rule to petitions for certiorari filed in the

New Mexico Supreme Court:

       [I]n habeas cases once a petitioner “files” a petition for certiorari
       with the New Mexico Supreme Court, the petition is deemed denied

                                             -5-
       if “certiorari is not granted by the Supreme Court within thirty (30)
       days after filing.” N.M. R. Crim. P. 5-802G (3). While we are
       unable to find any case law on point, it strains credulity to argue the
       thirty-day period begins running prior to the petition’s arrival at the
       New Mexico Supreme Court.

Adams , 223 F.3d at 1182.

       In other words, a petition for certiorari is not considered “filed” until

actually received by the clerk. This filing (that is, receipt by the clerk) must

occur within thirty days of the district court’s decision. N.M. R. Crim. P. 5-802G.

Moreover, the three-day mailing period established elsewhere in the appellate

rules does not apply to extend this filing period.   See N.M. R. App. P. 12-501(B).

“Thirty days” appears to mean exactly what it says.

       We have stressed that the mailbox rule is not constitutional or equitable in

nature, but depends entirely upon interpretation of the word “filed” as it is used

in the applicable rule or statute.   See Jenkins v. Burtzloff , 69 F.3d 460, 461

(10th Cir. 1995) (discussing     Houston v. Lack ). The interplay of the New Mexico

court rules appears to leave no room for application of the mailbox rule to

this case.

       Petitioner argues that, notwithstanding the text of the rules, the

New Mexico Supreme Court takes a flexible attitude toward filing deadlines.

He claims that, given the chance, the New Mexico Supreme Court would




                                             -6-
institutionalize this flexibility by adopting the mailbox rule. He urges us to test

this hypothesis by certifying the question to that court.

       We have reviewed the cases cited by petitioner for his “flexibility”

hypothesis, and find them inapposite here. In       Chavez v. U-Haul Co. of

New Mexico, Inc. , 947 P.2d 122 (N.M. 1997), the pro se appellant faxed his

notice of appeal to the district court fifty-eight minutes late. The New Mexico

Supreme Court excused his late filing in part because it was only marginally

untimely, and because the New Mexico Constitution provides an aggrieved party

with an absolute right to one appeal.      Id. at 170.

       The circumstances here are significantly different. The proceeding at issue

here was not petitioner’s direct appeal, guaranteed by the New Mexico

Constitution, but an application for a discretionary writ of certiorari from his   third

habeas petition.   Cf. State v. Peppers , 796 P.2d 614, 619 n.2 (N.M. Ct. App.

1990) (distinguishing habeas petition, from which there is no right of appeal,

from right to directly appeal conviction     once , guaranteed by New Mexico

Constitution). Moreover, he was more than marginally late.

       Petitioner also cites Trujillo v. Serrano , 871 P.2d 369, 374 (N.M. 1994).

In that case, the New Mexico Supreme Court stated that an untimely appeal

should be heard if the actions of the magistrate court from which appeal was

taken caused the untimely filing. No such allegation is made here. We conclude


                                              -7-
that New Mexico would not adopt the mailbox rule for petitions for certiorari to

the New Mexico Supreme Court from denial of state habeas petitions.

       2. Is the decision based on an independent and adequate state ground?

       We must next ask whether the decision of the New Mexico Supreme Court

rejecting petitioner’s petition for certiorari as untimely “rests on a state law

ground that is independent of the federal question and adequate to support the

judgment.” Coleman v. Thompson , 501 U.S. 722, 729 (1991). If so, petitioner

has procedurally defaulted the issues raised in his certiorari petition, and we will

not consider them.

       The procedural rule applied by the New Mexico Supreme Court clearly is

independent of the federal question posed by the underlying petition, because it

“relies on state law, rather than federal law, as the basis for the decision.”

English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998). We turn to the more

difficult issue of its adequacy. “[I]n order to be adequate, a state rule of

procedural default must be applied evenhandedly in the vast majority of cases.”

Id.

       The certiorari deadline in habeas cases is phrased in mandatory terms:

“Petitions for writs of certiorari   shall be filed with the supreme court clerk within

thirty (30) days of the district court’s denial of the petition.” N.M. R. App. P.

12-501(B) (emphasis added). In an attempt to show that New Mexico does not


                                             -8-
apply this deadline evenhandedly or consistently, petitioner cites cases involving

writs of certiorari directed to the New Mexico Court of Appeals.     Serna v. Bd. of

County Comm’rs , 540 P.2d 212 (N.M. 1975);        Gulf Oil Corp. v. Rota-Cone Field

Operating Co. , 515 P.2d 640 (N.M. 1973). In each of these cases, while

recognizing the possibility of unusual circumstances justifying a late filing, the

New Mexico Supreme Court ultimately refused to excuse the untimely filing.

This falls short of a showing that certiorari deadlines in habeas cases are not

regularly followed. We conclude that the thirty-day deadline for filing petitions

for certiorari is applied evenhandedly and is both “independent” and “adequate”

for purposes of procedural bar.

       3. Has petitioner shown cause and prejudice?

       Since petitioner “defaulted his federal claims in state court pursuant to an

independent and adequate state procedural rule,” we cannot review them unless he

either demonstrates “cause for the default and actual prejudice as a result of the

alleged violation of federal law,” or that “failure to consider the claims will result

in a fundamental miscarriage of justice.”    Coleman , 501 U.S. at 750. We consider

first whether petitioner has established cause and prejudice that would excuse his

procedural default.

       Petitioner alleges cause in that he deposited his petition for certiorari in the

prison mail system prior to the deadline. In other words, he relies for his showing


                                            -9-
of cause on the same “mailbox rule” that we have concluded would be rejected by

the New Mexico Supreme Court. Even if this situation constitutes cause for

missing the deadline, we hold that petitioner’s argument fails because he has not

shown prejudice sufficient to excuse his procedural default.

       Petitioner alleges that he was prejudiced because his counsel was

ineffective under the test in   Strickland v. Washington , 466 U.S. 668 (1984).

Strickland requires a petitioner to show both that his counsel was ineffective and

that he suffered prejudice from the error.     Id. at 687. Petitioner argues that his

attorney was ineffective in failing to have him take a polygraph test and in failing

to allow him to testify. Had the test come out positive (that is, had it validated

his account that he was not involved in the felony murder for which he was

convicted), petitioner argues, his counsel would have had good reason to put him

on the stand. He meets the prejudice prong of       Strickland , he argues, because the

evidence against him was weak and the jury’s verdict is unreliable absent his

testimony in his own behalf.

       Petitioner testified at the evidentiary hearing concerning the facts he would

have related if he had been allowed to testify. The district court adopted the

magistrate judge’s conclusion that petitioner failed to show a reasonable

probability that the outcome would have been different if he had testified or if his

attorney had advised him to take a polygraph test. Upon our review of the record,


                                             -10-
we agree with the district court’s conclusion, for substantially the same reasons

stated in Magistrate Judge Garcia’s findings and recommended disposition dated

March 7, 2000.

       4. Has petitioner shown a fundamental miscarriage of justice?

       The “fundamental miscarriage of justice” exception is extremely narrow.

It applies only in “an extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually innocent.”   Murray v.

Carrier , 477 U.S. 478, 496 (1986). The district court concluded that petitioner

failed to meet his burden of showing that no reasonable juror, after hearing

petitioner’s story, would have concluded that he had not at least attempted to rob

the victim. This attempted robbery, together with the fact of the victim’s death,

forms the factual predicate for the felony murder conviction. Given these facts,

petitioner has failed to demonstrate that he is actually innocent of the crime.

We affirm on this issue, for substantially the reasons stated in Magistrate Judge

Garcia’s findings and recommended disposition dated March 7, 2000.




                                           -11-
      Petitioner’s application for a COA is granted. His motion for certification

of an issue of state law is denied. The judgment of the United States District

Court for the District of New Mexico is AFFIRMED.



                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge




                                        -12-
