                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                            July 11, 2016
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DANIEL G. MELINA,

      Petitioner - Appellant,

v.                                                         No. 16-1067
                                                  (D.C. No. 1:14-CV-00637-LTB)
WILLIAM POLLARD, Warden;                                     (D. Colo.)
CYNTHIA H. COFFMAN, The Attorney
General for the State of Colorado,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

      Daniel G. Melina, a Colorado prisoner proceeding pro se, seeks a certificate of

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

application as untimely filed. We decline to issue a COA and thus dismiss this

appeal.

                                  BACKGROUND

      After a Colorado state-court jury convicted Melina of criminal solicitation, the

court sentenced Melina to 96 years’ imprisonment. On June 25, 2007, after granting


      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
certiorari, the Colorado Supreme Court affirmed his conviction. After this, Melina

neither filed a petition for rehearing with the Colorado Supreme Court nor a writ of

certiorari with the United States Supreme Court.

      On July 24, 2008, Melina moved for post-conviction relief under Colo. R.

Crim. P. 35. The state district court denied Melina’s motion, and the Colorado Court

of Appeals affirmed the denial. On December 9, 2013, the Colorado Supreme Court

denied Melina’s petition for writ of certiorari.

      On February 27, 2014, Melina filed in federal district court an application for a

writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the

application as untimely and dismissed Melina’s application. Melina argues the

district court erred because Colo. R. App. P. 40(a), which allows a petition for

rehearing to be filed within 14 days after a decision by the Colorado Supreme Court,

tolled the statute of limitations during that 14-day period. Melina contends this 14-

day tolling period must run before the time for filing a petition for writ of certiorari

with the United States Supreme Court begins to run.

                                     DISCUSSION

   1. Melina’s Notice of Appeal is Timely

      We must first determine whether we have jurisdiction to review Melina’s

claims on appeal. See W. Ins. Co. v. A and H Ins., Inc., 784 F.3d 725, 727–28 (10th

Cir. 2015) (“[W]e must first determine whether we have appellate jurisdiction.”). A

notice of appeal in a civil case must be filed with the district clerk within 30 days of

entry of the judgment or order from which the appeal is taken. Fed. R. App. P. 4(a).

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This 30-day time limit is “mandatory and jurisdictional.” Vanderwerf v. Smithkline

Beecham Corp., 603 F.3d 842, 846 (10th Cir. 2010) (quoting Budinich v. Becton

Dickinson & Co., 486 U.S. 196, 203 (1988)).

      On January 29, 2016, the district court entered its judgment denying a COA.

On February 26, 2016, Melina placed his notice of appeal in the prison mailbox,

postage prepaid. Unfortunately, he addressed this mailing to this court for filing. On

March 3, 2016, we received the notice of appeal, and forwarded it to the district

court. Fed. R. App. P. 4(d) (“If a notice of appeal . . . is mistakenly filed in the court

of appeals, the clerk of that court must note on the notice the date when it was

received and send it to the district clerk.”). The district court filed the notice of

appeal the same day.

      Because more than 30 days had elapsed from the district court’s order denying

a COA until filing of the notice of appeal, we issued an order to show cause why we

should not dismiss Melina’s appeal. Because Melina’s statements in response to the

order to show cause satisfy the prison mailbox rule, see Fed. R. App. P. 4(c), we

conclude that Melina had filed his notice of appeal within the required time and that

we have jurisdiction to consider Melina’s appeal. See Price v. Philpot, 420 F.3d

1158, 1163–64 (10th Cir. 2005) (“[A] pro se prisoner’s notice of appeal will be

considered timely if given to prison officials for mailing prior to the filing deadline,

regardless of when the court itself receives the documents.”); see also Larson v.

Meek, 240 F. App’x 777, 780 (10th Cir. 2007) (unpublished) (combining prison

mailbox rule and misdirected filing to establish timely filing).

                                            3
   2. Melina’s Application is Time-barred

      In considering the merits of Melina’s appeal, we construe his pro se pleadings

liberally, but we do not serve as his advocate. James v. Wadas, 724 F.3d 1312, 1315

(10th Cir. 2013). To appeal the district court’s dismissal, Melina must first obtain a

COA. We may issue a COA only if the petitioner makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). And where, as here, a

district court dismisses a § 2254 petition on procedural grounds, we may issue a COA

only if “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).

      Here, we do not believe that reasonable jurists would debate the district court’s

conclusion that Melina’s petition is time-barred. The Antiterrorism and Effective

Death Penalty Act (AEDPA) establishes a one-year limitations period for habeas

corpus petitions. 28 U.S.C. § 2244(d). The one-year limitation period begins to run

from the date on which a judgment becomes final. Id. § 2244(d)(1)(A); Jiminez v.

Quarterman, 555 U.S. 113, 115 (2009). A judgment becomes final under

§ 2244(d)(1)(A) when the time for seeking certiorari review in the United States

Supreme Court expires. Jiminez, 555 U.S. at 115. The limitations period is tolled

during the pendency of a state application for post-conviction relief properly filed

during the limitations period. 28 U.S.C. § 2244(d)(2).

      Here, the time for seeking certiorari review in the United States Supreme

Court expired on September 24, 2007—90 days after the Colorado Supreme Court

affirmed Melina’s conviction. See Sup. Ct. R. 13 (“a petition for a writ of certiorari

                                          4
to review a judgment in any case, civil or criminal, entered by a state court of last

resort . . . is timely when it is filed . . . within 90 days after entry of the judgment.”);

see also Habteselassie v. Novak, 209 F.3d 1208, 1209 (10th Cir. 2000) (“Because

[the petitioner] did not file a petition for certiorari to the United States Supreme

Court, the one-year period of limitation started to run ninety days after . . . his state

court review was thus completed.”). Melina waited until July 24, 2008, 303 days after

the judgment became final, to file his post-conviction motion with the Colorado state

court. Once Melina filed his post-conviction motion, the statute of limitations was

tolled until December 9, 2013, when the Colorado Supreme Court denied Melina’s

petition for writ of certiorari. Melina waited another 80 days to file his habeas corpus

application in the district court. Thus, Melina filed his habeas corpus application 383

days after the Colorado Supreme Court’s judgment became final.1

       Melina does not dispute taking 383 days to file his habeas corpus application.

Instead, he argues that he is entitled to an additional 14-day tolling period during the

time in which he could have petitioned the Colorado Supreme Court for rehearing.

Under Colo. R. App. P. 40(a), a defendant may file a petition for rehearing within 14

days after entry of judgment by the Colorado Supreme Court.2 We have previously



       1
         There is confusion concerning whether the prison mailbox rule would deem
the post-conviction motion filed on July 20, 2008 instead of July 24, 2008. We
refrain from addressing this issue because Melina’s application was still untimely
even if the prison mailbox rule applied.
       2
       Melina could not seek rehearing of the denial of certiorari by the Colorado
Supreme Court on his post-conviction proceeding. See Colo. R. App. P. 40(c)(3)
                                             5
recognized that the “time allowed for appeals tolls the AEDPA limitations period,

including the time for filing a motion for rehearing, even if no such filing is made.”

Serrano v. Williams, 383 F.3d 1181, 1185 (10th Cir. 2004).3

      But this 14-day period runs concurrently with the 90 days in which Melina

could seek certiorari review in the United States Supreme Court. Both tolling periods

started after the Colorado Supreme Court affirmed Melina’s conviction. See Sup. Ct.

R. 13(3) (“The time to file a petition for a writ of certiorari runs from the date of

entry of the judgment or order sought to be reviewed . . . . ”). Thus, the 14-day period

to file a petition for rehearing was subsumed by the 90-day statutory tolling period.

See Mills v. McKune, 186 F. App’x 828, 830–31 (10th Cir. 2006) (twenty-day period

to file a petition for rehearing was subsumed by ninety-day tolling period). Because

Melina failed to file his habeas corpus application within the required statute of

limitations, no reasonable jurists might debate the district court’s conclusion that

Melina’s petition is time-barred.




(“No petition for rehearing may be filed after issuance of an order denying a petition
for writ of certiorari.”).
      3
        Because Melina loses even with the time allowed by Serrano, we need not
await the Supreme Court’s action on a case that might undo Serrano. See Petition for
Writ of Certiorari in Scarber v. Palmer, No. 15-1174, 2016 U.S. S.Ct. Briefs LEXIS
1313 (Mar. 18, 2016). Here, whether Melina is entitled to the 14-day period despite
not having filed a petition for rehearing on direct appeal doesn’t matter since either
way his present petition is time-barred. Thus, we need not decide whether the
AEDPA limitations period should be tolled when no petition for rehearing is filed.
                                           6
                                CONCLUSION

      We DENY Melina’s application for a COA and DISMISS the appeal. Melina’s

motion to proceed in forma pauperis is DENIED.


                                        Entered for the Court


                                        Gregory A. Phillips
                                        Circuit Judge




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