Albert v. Janecka ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 7, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DONALD ALBERT,
Petitioner-Appellant, No. 05-2122
v. (D.C. No. CIV-04-1318 JB/RLP)
JAMES JANECKA, Warden, Lea (D. New Mex.)
County Correctional Center;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER
Before HENRY, McKAY, and EBEL, Circuit Judges.
This is a pro se § 2254 appeal. Petitioner is currently serving sentences in
New Mexico state prison following his convictions for sexual assault on a minor.
Judgment was entered on those convictions on June 18, 1999. He did not file a
direct appeal in state court. Petitioner filed a 28 U.S.C. § 2254 petition on
November 22, 2004.
In the magistrate judge’s proposed findings and disposition, he ruled that
the petition was time barred by the one-year limitation period contained in the
Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1). The
one-year limitation runs 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.” § 2244(d)(1)(A). Petitioner had thirty days from his June 18, 1999,
entry of judgment to seek direct review. Thus, Petitioner’s window of time in
which to file his § 2254 petition closed one year and thirty days after the date of
his judgment of conviction, or July 18, 2000. But Petitioner did not file his
habeas petition until November 22, 2004, past the time allowed.
The district court adopted the magistrate judge’s findings and dismissed the
action. Order (Mar. 29, 2005, D.N.M.). The district court also issued an order
denying certificate of appealability on May 24, 2005. Petitioner now seeks from
this court a certificate of appealability. The issues he raises on appeal are
identical to those brought before the district court.
To grant a certificate of appealability, Petitioner must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).
To meet this burden, Petitioner must demonstrate “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. McDaniel, 529 U.S. 473,
484 (2000) (quotation omitted).
We have carefully reviewed Petitioner’s brief, the district court’s
disposition, the magistrate judge’s recommendation, and the record on appeal.
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Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue
which meets our standard for the grant of a certificate of appealability. For
substantially the same reasons set forth by the magistrate judge and adopted by
the district court in its Order of March 29, 2005, we cannot say “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner.” Id.We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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