                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 16 1998
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 TOBY SANCHEZ, JR.,

          Petitioner-Appellant,

 v.                                                       No. 98-2086
                                                    (D.C. No. CIV-97-1207)
 RON LYTLE, Warden; ATTORNEY                               (D. N.M.)
 GENERAL FOR THE STATE OF
 NEW MEXICO,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY, 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); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Toby Sanchez, Jr., a New Mexico state prisoner appearing pro se, seeks a

certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C.


      *
        This order and judgment is not binding precedent, except under the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.
§ 2254 habeas petition. We deny a certificate of appealability and dismiss the

appeal.

      Sanchez was convicted in 1988 of first-degree murder in state court and his

conviction was affirmed in   State v. Sanchez , 785 P.2d 224 (N.M. 1989). He

sought post-conviction relief in April 1994 by filing a habeas petition in state

court, which was denied on May 17, 1994, and the New Mexico Supreme Court

denied review on June 17, 1994. Sanchez filed a 28 U.S.C. § 2254 habeas

petition in federal court later in 1994, but while it was still pending, he moved to

voluntarily dismiss the action without prejudice. Sanchez alleges his purpose in

moving to dismiss was to allow him time to exhaust his state court remedies on

his claim of factual innocence. The federal court dismissed the habeas petition

without prejudice on April 15, 1996. Over a year later, on April 21, 1997,

Sanchez filed a habeas petition in state court. The petition was denied on July 28,

1997, and the New Mexico Supreme Court denied review on August 22, 1997

(Sanchez allegedly received a copy of the order on August 26, 1997).

      Sanchez filed the instant habeas petition on September 5, 1997.   1



Respondents moved to dismiss for untimely filing. The magistrate judge


      1
         Sanchez mailed the habeas petition on September 5, 1997, and it was
filed on September 10, 1997. For purposes of this opinion, we have given him the
benefit of the “mailbox rule” outlined in  Houston v. Lack , 487 U.S. 266, 270
(1988) (pro se prisoner’s notice of appeal is “filed” when it is delivered to prison
officials for forwarding to clerk’s office).

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concluded the petition was untimely filed and should be dismissed pursuant to 28

U.S.C. § 2244(d). The district court adopted the magistrate’s report and

dismissed the action with prejudice.

       To obtain a certificate of appealability, Sanchez must make “a substantial

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

standard is met by a showing that the issues raised “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 (10th Cir. 1997).

       Congress amended “the long-standing prior practice in habeas corpus

litigation that gave a prisoner virtually unlimited amounts of time to file a habeas

petition in federal court,” on April 24, 1996, and “established a one-year period of

limitations for habeas petitions.”   Hoggro v. Boone , 150 F.3d 1223, 1224 (10th

Cir. 1998). The one-year period generally begins to run from “the date on which

the judgment 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). For prisoners

whose convictions became final prior to April 24, 1996, the new limitation period

could have eliminated entirely an opportunity to file a federal habeas petition.

Recognizing this problem, this court has held “that for prisoners whose

convictions became final before April 24, 1996, the one-year statute of limitations

does not begin to run until April 24, 1996.”         Hoggro , 150 F.3d at 1225; United


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States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997).

       The one-year limitation period can be tolled by ongoing post-conviction

litigation in state court.   See Hoggro , 150 F.3d at 1226. In particular, 28 U.S.C. §

2244(d)(2) provides “[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” the one-year period of

limitation.

       Applying these principles, we agree that Sanchez’ federal habeas petition

was untimely and was therefore barred by § 2244(d). Because his state conviction

became final well prior to Congress’ implementation of the new limitation period,

his one-year period for filing a federal habeas petition began running on April 24,

1996. The one-year limitation period continued to run until April 21, 1997, when

Sanchez filed a habeas petition in state court. The period was tolled until August

22, 1997, when the New Mexico Supreme Court denied review. The limitation

period expired on August 25, 1997, eleven days prior to the filing of the instant

habeas petition. Even giving him the benefit of mailing time and thus assuming

the limitation period did not begin running again until August 26, 1997, it would

have expired on August 29, 1997.

       Sanchez argues the one-year limitation period should have been equitably

tolled because of his incarceration outside the state of New Mexico and his lack


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of access to legal materials. According to Sanchez, prison overcrowding caused

his transfer out of state in December 1995. He was allegedly returned to New

Mexico in April 1996, but did not receive his legal materials until July 1996.

Sanchez fails to specify how his alleged lack of legal materials prevented him

from filing his claim of factual innocence via a habeas petition in state court.

Indeed, his claim is undermined by the fact that even after he allegedly received

his legal materials, he waited approximately nine months to file his state habeas

petition. Moreover, by his own admission, we note Sanchez remained silent about

his claim of factual innocence from 1988 until 1996. We conclude it was

Sanchez’ lack of diligence rather than his alleged lack of access to legal materials

that prevented him from filing a timely state habeas petition.     See Miller v. Marr ,

141 F.3d 976, 978 (10th Cir.) (acknowledging § 2244(d) may be subject to

equitable tolling, but only when inmate has diligently pursued claim),     cert. denied

119 S. Ct. 210 (1998).

       Sanchez next argues the one-year limitation period violates the Suspension

Clause, U.S. Const. art. I, § 9, cl. 2, which prohibits suspension of the writ of

habeas corpus. We disagree. Although we have acknowledged “[t]here may be

circumstances where the limitation period at least raises serious constitutional

questions and possibly renders the habeas remedy inadequate and ineffective,”

Miller , 141 F.3d at 978, those circumstances are not present here. It was not the


                                            -5-
one-year limitation period that prevented Sanchez from obtaining federal review

of the legality of his conviction, but rather his lack of diligence.

      Finally, Sanchez argues the limitation period violates his substantive due

process rights. Although his arguments are somewhat unclear, he appears to

assert the limitation period serves no purpose and effectively deprives him of the

opportunity to have his conviction reviewed by federal courts. In enacting the

Antiterrorism and Effective Death Penalty Act, of which § 2244 is a part,

“Congress intended to ‘reduce federal intrusion into state criminal proceedings.’”

Lovasz v. Vaughn , 134 F.3d 146, 148 (3d Cir. 1998) (quoting      Banks v. Horn , 126

F.3d 206, 213 (3d Cir. 1997)). In any event, we again emphasize the limitation

period did not deprive Sanchez of his opportunity for federal review; rather

Sanchez himself failed to pursue his available remedies in a timely fashion.

      Sanchez’ application for a certificate of appealability is DENIED and the

appeal is DISMISSED. The mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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