                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       April 23, 2007
                                     TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

 SHAW N LO UIS JACO BS,

          Petitioner - A ppellant,
 v.                                                      No. 06-2357

 RICK LOONEY, W arden; *                       (D.C. No. CIV-06-469 W J/LCS)
 A TTO RN EY G EN ER AL FO R THE                          (D .N.M .)
 STA TE OF N EW M EX IC O,

          Respondent - Appellee.



                              ORDER DENYING A
                        CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ and GORSUCH, Circuit Judges.


      Shawn Jacobs, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. For substantially the same reasons set forth by the district court,

we D EN Y a COA and DISM ISS.

      On his guilty plea, Jacobs was convicted of receiving or transferring a

stolen vehicle on January 25, 1995. On M arch 29, 2006, Jacobs filed a petition

for a writ of habeas corpus in New M exico state court, which was dismissed as


      *
        Pursuant to Fed. R. App. P. 43(c)(2), we grant Jacobs’ motion to correct
the respondent’s name and substitute Rick Looney for Robert Ulibarri as the
appellee in this action.
untimely. After the New M exico Supreme Court denied Jacobs’ subsequent

motion for writ of certiorari, he filed a § 2254 petition in federal district court on

June 5, 2006. A magistrate judge reviewed Jacobs’ petition and concluded it was

time-barred. In his Proposed Findings and Recommended Disposition

(“Recommended Disposition”) filed October 20, 2006, the magistrate judge

explicitly informed the parties they must file any objections within ten days of

service. After receiving no objections, the district court adopted the

Recommended Disposition and dismissed Jacobs’ motion with prejudice. Jacobs

then filed an objection to the Recommended Disposition on December 26, 2006,

contending he did not receive a copy until December 21, 2006. No action was

taken on this objection, and the district court subsequently denied Jacobs a COA.

Jacobs now requests a COA from this court. 1

      The State argues that Jacobs’ failure to timely object to the Recommended

Disposition bars him from appealing the final decision of the district court. W e

disagree. Ordinarily, “the failure to make timely objection to the magistrate’s

findings or recommendations waives appellate review of both factual and legal

      1
         The Antiterrorism and Effective Death Penalty Act (“AEDPA ”)
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may issue “only if
the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Jacobs to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).

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questions,” however, this rule “need not be applied when the interests of justice

so dictate.” W irsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004)

(citation and quotation omitted). In W irsching, we declined to apply the waiver

rule in light of a pro se litigant’s “facially plausible” “allegation that he did not

receive the magistrate’s report and recommendation.” Id. at 1198. In crediting

this allegation, we noted the plaintiff had been “a fairly tenacious litigant,” filing

a pro se complaint, motions to appoint counsel, and responses to the defendants’

motions to dismiss and for summary judgment. Id. Jacobs has shown similar

diligence w ith respect to this habeas action, submitting briefs and petitions,

responding to the State’s memoranda, providing notice of his change of address,

and filing a motion to correct the respondent’s name. Because Jacobs’ assertion

that he did not receive a copy of the Recommended Disposition until December

21, 2006 is facially plausible, we conclude the interests of justice support an

exception to our firm waiver rule. W e will therefore consider his application for

a COA .

      Nonetheless, we agree with the lower court that Jacobs’ § 2254 petition is

time-barred. 28 U.S.C. § 2244(d) sets forth the statute of limitations for § 2254

petitions as follow s:

      (1) A 1-year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the
      judgment of a State court. The limitation period shall run from the
      latest of –



                                          -3-
          (A) the date on which the judgment became final by the
      conclusion of direct review or the expiration of the time for seeking
      such review ;
          . . . or
          (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.

      Jacobs’ conviction became final prior to the effective date of AEDPA.

Accordingly, he had until April 24, 1997, to either file his habeas petition or toll

the statute of limitations by filing an application for state post-conviction relief.

See Serrano v. W illiams, 383 F.3d 1181, 1183 (10th Cir. 2004). Jacobs did

neither. He filed his habeas petition in federal court on June 5, 2006, and his first

application for state post-conviction relief on M arch 29, 2006 – almost nine years

after the limitations period had run.

      W e further conclude that Jacobs has not met the requirements for equitable

tolling. Equitable tolling “is only available w hen an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by

extraordinary circumstances beyond his control.” M arsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000). Nothing in the record indicates that Jacobs faced

extraordinary circumstances that prevented him from pursuing his claims. As

such, equitable tolling would be improper in this case.




                                          -4-
      For the reasons set forth above, Jacobs’ request for a COA is DENIED and

his appeal is DISM ISSED. His motion to correct the respondent’s name is

GRANTED.



                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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