                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                     October 12, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 C HA RLES JEFFR EY M C MILLIAN,

          Petitioner-A ppellant,                        No. 05-1393
                                                 (D.C. No. 05-cv-985-ZLW )
 v.                                                     (Colorado)

 TONY CAROCHI, W arden;
 A TTO RN EY G EN ER AL O F THE
 STA TE OF C OLO RA D O ,

          Respondents-Appellees.



                           ORDER AND JUDGMENT


Before HA RTZ, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Charles Jeffrey M cM illian, a Colorado state prisoner appearing pro se, filed

this application for a certificate of appealability (COA), see 28 U.S.C. §

2253(c)(1)(A), seeking to challenge the district court’s sua sponte dismissal of his

28 U.S.C. § 2254 habeas petition as untimely. 1 He also seeks leave to proceed in

form a pauperis (ifp) on appeal.

      W here the district court dismisses a petition on procedural grounds, the

inmate m ust show in his application for a COA “that it is reasonably debatable


      1
        Because he is proceeding pro se, we review M r. M cM illian’s pleadings
and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
whether (1) the petition states a valid claim of the denial of a constitutional right,

and (2) the district court’s procedural ruling is correct.” Dulworth v. Evans, 442

F.3d 1265 (10th Cir. 2006), (citing Slack v. M cDaniel, 529 U.S. 473, 483-84

(2000)). Because we conclude that the basis for the district court’s procedural

ruling is not correct and a quick review of M r. M cM illian’s claims on the merits

satisfies the first prong, we grant his applications for a COA and ifp status, vacate

the district court’s judgment, and remand for further proceedings.

      M r. M cM illian pled guilty in Colorado state court to charges of conspiracy

to comm it first-degree murder, retaliation against a witness, second-degree

murder, and aggravated motor vehicle theft. Prior to sentencing, he filed a

motion under Rule 32(d) of the Colorado Rules of Criminal Procedure to

withdraw his guilty plea. That motion was denied and he was sentenced to sixty-

four years imprisonment. The Colorado Court of Appeals affirmed, and on M ay

22, 1997, the Colorado Supreme Court denied certiorari review. The period of

time before which a conviction becomes final continues “until after 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.” Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999). M r. M cM illian’s

conviction thus became final on August 22, 1997.

      Before his conviction became final, M r. M cM illian filed a motion for

postconviction relief pursuant to Rule 35 of the Colorado Rules of Criminal

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Procedure on M ay 22, 1997. That motion was denied on February 18, 1998, and

M r. M cM illian’s appeal of that denial was dismissed by the Colorado Court of

Appeals on April 15, 1999. The Colorado Supreme Court subsequently denied his

petition for a writ of certiorari on September 27, 1999.

      M r. M cM illian then filed a second Rule 35 motion for postconviction relief

on April 17, 2000. It was denied and M r. M cM illian’s appeal of that denial was

dismissed by the C olorado Court of A ppeals. The Colorado Supreme Court

subsequently denied his petition for a w rit of certiorari on April 25, 2005. M r.

M cM illian filed the present § 2254 habeas petition on M ay 31, 2005. The district

court dismissed his petition as untimely.

      A one-year period of limitation applies to an application for a federal writ

of habeas corpus and begins to run from the latest of “the date on which the

judgment [of conviction] became final by the conclusion of direct review or the

expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A s

we have shown above, M r. M cM illian’s conviction became final on August 22,

1997. The district court’s determination that his conviction “became final prior to

April 24, 1996” is therefore incorrect.

      Absent any tolling of the limitation period, M r. M cM illian would have had

until August 22, 1998 to file a habeas corpus petition in federal court, and his

petition of M ay 31, 2005 w ould have been untimely. M r. M cM illian filed two

state motions for postconviction relief. The first was pending from M ay 30, 1997

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until September 27, 1999, and the second was pending from April 17, 2000 until

April 25, 2005. Section 2244(d)(2) provides that “[t]he 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 section.” Because M r. M cM illian’s first

motion for post-conviction relief was filed prior to his judgment becoming final,

the one-year limitation period did not start to run until September 27, 1999.

Thus, absent his second motion for postconviction relief, M r. M cM illian had until

September 27, 2000 to file his habeas petition.

      Instead, on April 17, 2000, six months and nineteen days after the Colorado

Supreme Court denied his request for a writ of certiorari as to his first motion,

M r. M cM illian filed a timely second motion for postconviction relief. 2

Successive state motions for postconviction relief toll 28 U.S.C. 2244(d)(2)’s



      2
        The United States Supreme Court has held that time limits for filing state
motions for postconviction relief are to be considered “filing conditions” when
determining whether a state motion was “properly filed” so as to toll 28 U.S.C. §
2244(d)(2)’s one-year limitation period. Pace v. DiGuglielmo, 544 U.S. 408, 417
(2005). Accordingly, a state postconviction motion rejected by the state court as
untimely is not “properly filed” and does not toll the limitation period. Id. at 410.
In the present case, the trial court dismissed M r. M cM illian’s second motion for
postconviction relief as successive and untimely. Rec. at 63, 6-12 The Colorado
Court of Appeals affirmed, but not on the grounds that M r. M cM illian’s motion
was untimely. Rather, the court of appeals affirmed solely on the grounds that the
motion was successive. Our review of the record suggests the motion was timely
filed within Colorado’s three-year statute of limitation for collateral attack on a
trial court’s judgment. C OLO . R EV . S TAT . § 16-5-402(1) (2006). Thus, the
Supreme Court’s holding in Pace does not apply to this case.

                                          -4-
one-year limitation period as long as they were otherwise “properly filed.” See

Habteselassie v. Novak, 209 F.3d 1208, 1210-12 (10th Cir. 2000). See also Artuz

v. Bennett, 531 U.S. 4, 8 (2000); Drew v. Dep’t of Corr., 297 F.3d 1278, 1284

(11th Cir. 2002); Smith v. Walls, 276 F.3d 340, 342 (7th Cir. 2002); Palmer v.

Carlton, 276 F.3d 777, 779 (6th Cir. 2002); Snow v. Ault, 238 F.3d 1033, 1035

(8th Cir. 2001); Villegas v. Johnson, 184 F.3d 467, 469-70 (5th Cir. 1999);

Lovasz v. Vaughn, 134 F.3d 146, 148-49 (3d Cir. 1998). Thus, M r. M cM illian’s

motion tolled the one-year period of limitation until April 25, 2005, the date on

which the Colorado Supreme Court denied his request for a writ of certiorari, at

which point the limitation period began to run once again.

      M r. M cM illian filed the present habeas petition on M ay 31, 2005, one

month and six days from April 25, 2005, the date on which his second motion for

postconviction relief was no longer pending. Adding together that one month and

six days to the six months and nineteen days between motions for postconviction

relief, it appears that when he filed the present habeas petition, M r. M cM illan had

as much as four months and five days left on the one-year limitations period. The

district court erred in ruling that his § 2254 petition was untimely.

      Accordingly, we GR ANT M r. M cM illian’s application for a COA on the

question of the timeliness of his § 2254 petition as well as his request to proceed




                                          -5-
ifp. W e VAC ATE the judgment of the district court dismissing M r. M cM illian’s

petition and R EM A N D for further proceedings consistent with this opinion. 3

                                         ENTERED FOR THE COURT

                                         Stephanie K. Seymour
                                         Circuit Judge




      3
       In light of our remand of Mr. McMillian’s case, the district court should
consider in the first instance Mr.McMillian’s request to supplement his § 2254 petition.
Mr.McMillian’s motion on appeal, filed on May 9, 2006, is therefore DENIED.

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