                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     May 27, 2015
                                                                  Elisabeth A. Shumaker
                         FOR THE TENTH CIRCUIT                        Clerk of Court
                     _________________________________

DARREN CHARLES BLUEMEL,

       Petitioner - Appellant,

v.                                                       No. 15-4046
                                                 (D.C. No. 2:13-CV-00945-TC)
ALFRED BIGELOW,                                            (D. Utah)

       Respondent - Appellee.
                    _________________________________

                 ORDER DENYING A CERTIFICATE OF
             APPEALABILITY AND DISMISSING THE APPEAL
                  _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                _________________________________


      Mr. Darren Bluemel pleaded guilty to murder in state district court, and the

court entered a judgment of conviction. He never attempted to withdraw his plea

or appeal his sentence; instead, he filed three state petitions for post-conviction

relief. Each time, the petition was dismissed. Mr. Bluemel then went to federal

court, seeking a writ of habeas corpus. This petition was dismissed as untimely.

      Mr. Bluemel then filed a second federal habeas petition, and the district

court ordered dismissal. The court noted the need for appellate approval before

Mr. Bluemel could file a second habeas petition, but declined to transfer the

petition to our court because a second habeas action would be untimely. Mr.

Bluemel wants to appeal.
                    Request for a Certificate of Appealability

      To appeal, Mr. Bluemel needs a certificate of appealability. See 28 U.S.C.

§ 2253(c)(1)(A). We can issue the certificate only if reasonable jurists could

debate the correctness of the district court’s ruling. Laurson v. Leyba, 507 F.3d

1230, 1232 (10th Cir. 2007). We conclude no reasonable jurist could debate the

correctness of the district court’s decision.

I.    Transfer or Dismissal of a Second Habeas Petition

      This is Mr. Bluemel’s second habeas petition on the same conviction. To

file a second habeas petition, Mr. Bluemel needs authorization from our court. In

re Pickard, 681 F.3d 1201, 1203 (10th Cir. 2012). The district court could have

transferred the action to us “if it [was] in the interest of justice to do so.” Id.

(quoting In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam)). But

transfers may be inappropriate when the action would be untimely. See In re

Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). When a transfer would

be futile, the district court can dismiss the action rather than transfer it to our

court. See id.

II.   Timeliness

      Federal habeas actions are subject to a one-year period of limitations,

which ordinarily begins to run from the date that the conviction became final. 28

U.S.C. § 2244(d)(1)(A). Mr. Bluemel does not question the fact that he filed the

second habeas petition more than a year after his conviction had become final.

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Instead, he argues that his claim “relies on a new rule of constitutional law.” See

28 U.S.C. § 2244(d)(1)(c); Appellant’s Opening Br. at 1. We reject this argument.

      A Supreme Court decision can affect the period of limitations when it

newly recognizes a constitutional right that is made retroactively applicable to

cases on collateral review. 28 U.S.C. § 2244(d)(1)(C). Invoking this principle,

Mr. Bluemel relies on two Supreme Court decisions issued in 2012: Martinez v.

Ryan, __ U.S. __, 132 S. Ct. 1309 (2012), and Maples v. Thomas, __ U.S. __, 132

S. Ct. 912 (2012).

      Martinez and Maples do not affect the limitations period because they did

not newly recognize a constitutional right. 1 See Pagan-San-Miguel v. United

States, 736 F.3d 44, 45 (1st Cir. 2013) (per curiam) (holding that Martinez did not

announce a new rule of constitutional law); Jones v. Ryan, 733 F.3d 825, 843 (9th

Cir. 2013) (holding that Martinez did not decide a new rule of constitutional law);

Adams v. Thaler, 679 F.3d 312, 322 n.6 (5th Cir. 2012) (stating that Martinez did

not establish a new rule of constitutional law); see also Sneed v. Shinseki, 737

F.3d 719, 728 (Fed. Cir. 2013) (stating that the Supreme Court based its decision




1
       In Maples, the Supreme Court held that an attorney’s abandonment
constituted cause, which allowed a habeas petitioner to avoid a procedural
default. 132 S. Ct. at 927. And in Martinez, the Court held that ineffective
assistance in post-conviction proceedings could constitute “cause” when the
constitutional claim could not be presented in a direct appeal. 132 S. Ct. at 1320-
21.

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in Maples on equitable principles rather than the right to effective assistance of

counsel).

      Even if these decisions had newly recognized a constitutional right, the

present action would have remained untimely because Mr. Bluemel brought this

action more than a year after the Supreme Court had issued Martinez and Maples.

      Because the present habeas action is untimely, no reasonable jurist could

fault the district court for dismissing the action rather than transferring it to our

court. As a result, we (1) decline to issue a certificate of appealability and (2)

dismiss the appeal.


                                         Entered for the Court



                                         Robert E. Bacharach
                                         Circuit Judge




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