Cordova v. LeMaster ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 5 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
PHILLIP CORDOVA,
Plaintiff-Appellant,
v. No. 99-2257
TIM LEMASTER, Warden, New Mexico (D.C. No. CIV-99-156 JP/LCS)
State Penitentiary; ATTORNEY (N.M.)
GENERAL FOR THE STATE OF NEW
MEXICO,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
On January 5, 1982, Petitioner Phillip Cordova pled guilty in New Mexico state
court to thirty separate counts in two indictments, including armed robbery and attempted
first degree murder, each with firearm enhancements. On January 20, 1982, the district
*
This order and judgment is not binding precedent, except under the doctrines of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.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not be of material assistance in the determination
of this appeal. See Fed. R. App. P. 34(a(2)(c); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
court sentenced Petitioner to nineteen years imprisonment on one of the armed robbery
counts and ten years imprisonment on the attempted first degree murder count, with the
sentences to run consecutively. The district court also sentenced Petitioner on the
remaining twenty-eight counts, with those sentences to run concurrently with the armed
robbery and attempted first degree murder sentences. Petitioner filed several
unsuccessful motions for post-conviction relief in state court. On February 10, 1999,
Petitioner mailed his federal habeas corpus petition in this case to the clerk of court.
In a thorough proposed findings and recommended disposition, a magistrate judge
recommended denial of the petition as untimely. The magistrate judge concluded that
because Petitioner’s judgment and sentence became final prior to the enactment of the
Antiterrorism and Effective Death Penalty Act (AEDPA), the grace period allowed under
United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997) applied. Under
Simmonds, state prisoners whose convictions became final prior to April 24, 1996, must
file their petitions within one year of the AEDPA’s enactment. Id. The one year period
of limitations, however, is tolled during the pendency of a properly filed application for
state post-conviction relief or other collateral review. 28 U.S.C. § 2244(d)(2);
see Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir. 1998). Because Petitioner filed his
federal habeas corpus petition more than one year after the New Mexico Supreme Court
denied his application for a writ of review on January 6, 1998, the magistrate judge
concluded Petitioner’s petition was time barred.
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After considering Petitioner’s objections, the district court adopted the proposed
findings and recommended disposition and denied Petitioner a certificate of appealability.
See 28 U.S.C. § 2253(c). His renewed application is before us.
A petitioner may appeal the denial of a § 2254 petition only if “a circuit justice or
judge” issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). We have
thoroughly reviewed Petitioner’s application for a certificate of appealability, his brief,
the magistrate judge’s proposed findings and recommended disposition, the district
court’s order adopting those proposed findings and recommended disposition, and the
entire record before us. We conclude that Petitioner’s petition is untimely substantially
for the reasons set forth in the magistrate judge’s proposed findings and recommended
disposition. Accordingly, we deny his request for a certificate of appealability and
dismiss the appeal.
CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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