Peters v. Attorney General of New Mexico

                                                                          F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 23 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CALVIN DEAN PETERS,
Petitioner-Appellant,
v.                                                    No. 02-2013
(D.C. No. CIV-01-114-MV/RLP)
ATTORNEY GENERAL FOR THE                               (D. N.M.)
STATE OF NEW MEXICO; TIM
LEMASTER, Warden, New Mexico
State Penitentiary,
Respondents-Appellees.
ORDER AND JUDGMENT          *
Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.
.
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This order and judgment is not binding precedent, except under the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.
Petitioner-appellant Calvin Dean Peters appeals from the district court’s
order dismissing his 28 U.S.C. § 2254 habeas corpus petition and denying his
requests for appointment of counsel and request for continuance. The district
court dismissed the petition because it concluded that Peters had failed to file
within the one-year statute of limitations.     See 28 U.S.C. § 2244(d).
Peters seeks a certificate of appealability (COA) to appeal from the order of
dismissal. See 

id. § 2253(c)(1)(A).

In order to receive a COA on a procedural
issue, he must show both “that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
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). Peters has
filed an extensive array of materials in support of his request for COA. He seeks
to raise the following issues concerning the district court’s procedural rulings:
(1) the district court’s failure to appoint counsel for him deprived him of the
opportunity to adequately brief the issues raised in his petition; (2) he should have
received an evidentiary hearing; (3) the district court should have granted his
request for continuance; (4) the “mailbox rule” applies, making his petition
timely; (5) the state waived the opportunity to argue the untimeliness of his
petition; (6) he did not receive an adequate notice and opportunity to be heard
before the district court dismissed his petition; (7) the time limit should have been
-2-
equitably tolled; (8) the New Mexico state prison law library was inadequate to
allow him to fully investigate and present his claims and/or he was denied access
to legal materials; (9) his claims are timely under the “discovery rule” of
28 U.S.C. § 2244(d)(1)(D); and (10) his petition for certiorari to the New Mexico
Supreme Court was timely. In addition, he raises a number of issues pertaining to
whether his underlying petition states a claim for the violation of a constitutional
right.
Upon careful consideration of the material submitted by Peters, the record
on appeal and the applicable law under the above-referenced standards, we have
determined that Peters is not entitled to a COA. We therefore DENY COA and
DISMISS this appeal. Peters’ motion for appointment of counsel on appeal is
DENIED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
-3-