Sanchez v. Lytle, 10th Cir. (1998)
Sanchez v. Lytle, 10th Cir. (1998)
Sanchez v. Lytle, 10th Cir. (1998)
DEC 16 1998
PATRICK FISHER
Clerk
No. 98-2086
(D.C. No. CIV-97-1207)
(D. N.M.)
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is
ordered submitted without oral argument.
Toby Sanchez, Jr., a New Mexico state prisoner appearing pro se, seeks a
certificate of appealability to appeal the district courts dismissal of his 28 U.S.C.
This order and judgment is not binding precedent, except under the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.
*
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concluded the petition was untimely filed and should be dismissed pursuant to 28
U.S.C. 2244(d). The district court adopted the magistrates report and
dismissed the action with prejudice.
To obtain a certificate of appealability, Sanchez must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. 2253(c)(2). This
standard is met by a showing that the issues raised are debatable among jurists,
or that a court could resolve the issues differently, or that the questions deserve
further proceedings.
Cir. 1998). The one-year period generally begins to run 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. 28 U.S.C. 2244(d)(1)(A). For prisoners
whose convictions became final prior to April 24, 1996, the new limitation period
could have eliminated entirely an opportunity to file a federal habeas petition.
Recognizing this problem, this court has held that for prisoners whose
convictions became final before April 24, 1996, the one-year statute of limitations
does not begin to run until April 24, 1996.
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2244(d)(2) provides [t]he time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward the one-year period of
limitation.
Applying these principles, we agree that Sanchez federal habeas petition
was untimely and was therefore barred by 2244(d). Because his state conviction
became final well prior to Congress implementation of the new limitation period,
his one-year period for filing a federal habeas petition began running on April 24,
1996. The one-year limitation period continued to run until April 21, 1997, when
Sanchez filed a habeas petition in state court. The period was tolled until August
22, 1997, when the New Mexico Supreme Court denied review. The limitation
period expired on August 25, 1997, eleven days prior to the filing of the instant
habeas petition. Even giving him the benefit of mailing time and thus assuming
the limitation period did not begin running again until August 26, 1997, it would
have expired on August 29, 1997.
Sanchez argues the one-year limitation period should have been equitably
tolled because of his incarceration outside the state of New Mexico and his lack
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141 F.3d 976, 978 (10th Cir.) (acknowledging 2244(d) may be subject to
equitable tolling, but only when inmate has diligently pursued claim),
cert. denied
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one-year limitation period that prevented Sanchez from obtaining federal review
of the legality of his conviction, but rather his lack of diligence.
Finally, Sanchez argues the limitation period violates his substantive due
process rights. Although his arguments are somewhat unclear, he appears to
assert the limitation period serves no purpose and effectively deprives him of the
opportunity to have his conviction reviewed by federal courts. In enacting the
Antiterrorism and Effective Death Penalty Act, of which 2244 is a part,
Congress intended to reduce federal intrusion into state criminal proceedings.
Lovasz v. Vaughn , 134 F.3d 146, 148 (3d Cir. 1998) (quoting
F.3d 206, 213 (3d Cir. 1997)). In any event, we again emphasize the limitation
period did not deprive Sanchez of his opportunity for federal review; rather
Sanchez himself failed to pursue his available remedies in a timely fashion.
Sanchez application for a certificate of appealability is DENIED and the
appeal is DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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