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    The United States Court of Appeals for the Tenth Circuit denied Melvin E. Smith's application for a certificate of appealability to appeal the district court's dismissal of his habeas corpus petition as time-barred. The district court assumed Smith's state post-conviction proceedings were pending through the state supreme court's denial of certiorari on September 25, 1998, leaving 24 days remaining on his federal habeas limitations period. However, Smith did not file his federal habeas petition until September 2, 1999, making it untimely. Reasonable jurists would not debate the district court's procedural ruling dismissing the petition as time-barred.

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    Filed: Patrick Fisher

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    The United States Court of Appeals for the Tenth Circuit denied Melvin E. Smith's application for a certificate of appealability to appeal the district court's dismissal of his habeas corpus petition as time-barred. The district court assumed Smith's state post-conviction proceedings were pending through the state supreme court's denial of certiorari on September 25, 1998, leaving 24 days remaining on his federal habeas limitations period. However, Smith did not file his federal habeas petition until September 2, 1999, making it untimely. Reasonable jurists would not debate the district court's procedural ruling dismissing the petition as time-barred.

    Original Description:

    Filed: 2002-09-27 Precedential Status: Non-Precedential Docket: 01-4189

    Original Title

    Smith v. Galetka, 10th Cir. (2002)

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    The United States Court of Appeals for the Tenth Circuit denied Melvin E. Smith's application for a certificate of appealability to appeal the district court's dismissal of his habeas corpus petition as time-barred. The district court assumed Smith's state post-conviction proceedings were pending through the state supreme court's denial of certiorari on September 25, 1998, leaving 24 days remaining on his federal habeas limitations period. However, Smith did not file his federal habeas petition until September 2, 1999, making it untimely. Reasonable jurists would not debate the district court's procedural ruling dismissing the petition as time-barred.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    13 views3 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit denied Melvin E. Smith's application for a certificate of appealability to appeal the district court's dismissal of his habeas corpus petition as time-barred. The district court assumed Smith's state post-conviction proceedings were pending through the state supreme court's denial of certiorari on September 25, 1998, leaving 24 days remaining on his federal habeas limitations period. However, Smith did not file his federal habeas petition until September 2, 1999, making it untimely. Reasonable jurists would not debate the district court's procedural ruling dismissing the petition as time-barred.

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    of 3

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    SEP 27 2002

    PATRICK FISHER
    Clerk

    MELVIN E. SMITH,
    Petitioner - Appellant,
    v.
    HANK GALETKA, Warden,

    No. 01-4189
    (D.C. No. 2:99-CV-686-C)
    (D. Utah)

    Respondent - Appellee.
    ORDER AND JUDGMENT
    Before OBRIEN and PORFILIO , Circuit Judges, and
    Judge.

    KANE , ** Senior District

    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)(2); 10th Cir. R. 34.1(G). The case is

    therefore ordered submitted without oral argument.


    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.

    The Honorable John L. Kane, Senior District Judge, United States District
    Court for the District of Colorado, sitting by designation.

    **

    Petitioner seeks a certificate of appealability (COA) to proceed with his


    appeal of the district courts dismissal of his petition for writ of habeas corpus as
    time-barred. Because his state court conviction became final prior to the effective
    date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), he
    had one year following AEDPAs April 24, 1996 effective date in which to file
    his 28 U.S.C. 2254 application.

    See Hoggro v. Boone , 150 F.3d 1223, 1225

    (10th Cir. 1998). This time period is further tolled during any time a properly
    filed application for state post-conviction or other collateral review is pending.
    See Gibson v. Klinger , 232 F.3d 799, 803 (10th Cir. 2000).
    Here, petitioner commenced state post-conviction proceedings on
    March 31, 1997, with twenty-four days remaining on his federal habeas clock.
    The district court assumed, without deciding, that all the time spent pursuing state
    post-conviction remedies continued the pending period through the state
    supreme courts denial of certiorari on September 25, 1998.

    See Carey v. Saffold ,

    122 S. Ct. 2134, 2136-38 (2002) (counting, as pending, intervals between


    consideration by lower court and further consideration of higher state court). As
    petitioner did not file his federal habeas corpus action until September 2, 1999, it
    was clearly time barred.

    Gibson , 232 F.3d at 808. Nor has he suggested

    circumstances justifying the application of equitable tolling.


    Soares , 223 F.3d 1217, 1220 (10th Cir. 2000),
    -2-

    See Marsh v.

    cert. denied , 531 U.S. 1194 (2001).

    Because the district court denied this habeas petition on procedural


    grounds, a COA may issue only if petitioner can show that jurists of reason would
    find it debatable both whether the district court was correct in its procedural
    ruling and whether the petitioner states a valid claim of the denial of
    constitutional right.

    Slack v. McDaniel , 529 U.S. 473, 484 (2000). The record

    before us is clear that reasonable jurists would not find the district courts
    procedural ruling debatable.
    Accordingly, the application for a certificate of appealability is DENIED,
    and the appeal is DISMISSED.

    Entered for the Court

    John L. Kane
    Senior District Judge

    -3-

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