1 We previously entered an order directing Sena to sh ow cause why this

appeal should not be dismissed on the ground that h is notice of appeal was filed more than thirty days after the entry of judgment b y the district court. Having considered Sena’s response to the show cause order, we conclude that the letter the district court received from Sena on July 1, 20 02 provided the notice required (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 14 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

HERMAN J. SENA,

Petitioner-Appellant,

v. NEW MEXICO CORRECTIONS DEPARTMENT; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO; STATE OF NEW MEXICO, Respondents-Appellees. No. 02-2200

ORDER

Before TACHA , Chief Judge, HARTZ , and O’BRIEN , Circuit Judges.

Herman J. Sena, appearing pro se, seeks a certificate of appealability (COA) to appeal the district court’s order dismissi ng his petition for writ of habeas corpus under 28 U.S.C. § 2254. We deny his request for a COA. 11 (...continued)

by Fed. R. App. P. 3(c)(1). Because the letter was filed within the time period specified by Fed. R. App. P. 4(a)(1), the letter wa s effective as a timely notice of appeal. See Smith v. Barry , 502 U.S. 244, 248-49 (1992).

2 The record does not support Sena’s claim that the s tate district court made a “ruling” at the sentencing hearing regarding good t ime credits. However, even if we assume that the court made the ruling alleged bySena, there are still no grounds for granting him a COA. -2- In 1985, Sena was convicted by a jury in a New Mexi co district court of first degree murder, aggravated burglary, and tampe ring with evidence, and he was sentenced to life imprisonment. In 1987, the N ew Mexico Supreme Court affirmed his convictions on direct appeal. In Marc h 2001, Sena filed a petition for writ of habeas corpus in the state district cou rt. The state district court dismissed the petition, and the New Mexico Supreme Court denied Sena’s petition for writ of certiorari in January 2002. In February 2002, Sena filed his § 2254 petition inthe United States District Court for the District of New Mexico, clai ming that his federal due process rights had been violated because the state district court’s “Judgment, Sentence and Commitment” order (sentencing order), see R., Doc. 2, Ex. A, did not reflect the court’s “ ruling ” 2at his sentencing hearing that “ with total good time defendant could be eligible for parole in as little as fifteen years ,” id., Doc. 1 at 2. Sena further alleged that, as a result of this omission in the sentencing order, the New Mexico Corrections Department has re fused to allow him to use-3-

earned good time credits to reduce the mandatory th irty-year sentence he is required to serve under N.M. Stat. Ann. § 31-21-10( A) before becoming eligible for parole. As a remedy, Sena requested that the f ederal district court: (1) “order that his [sentencing order] be amended”; and (2) “o rder his good time to be deducted from the end of his thirty (30) year life term.” Id. at 9. The magistrate judge recommended that Sena’s § 2254 petition be dismissed on the grounds that it was barred by the one-year statute of limitations in 28 U.S.C. § 2244(d)(1) and failed to state a cla im upon which relief could be granted. The district court adopted the magistrate judge’s recommendation and dismissed Sena’s petition. This appeal followed. Issuance of a COA is jurisdictional. Miller-El v. Cockrell , 123 S. Ct. 1029, 1039 (2003). A COA can issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court has dismissed a habeas petition on p rocedural grounds, a prisoner must also show that “jurists of reason would find i t debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). After carefully reviewing the record, we c onclude that the district court’s procedural ruling as to the untimeliness of Sena’s petition would not be debatable among jurists of reason.-4-

Sena’s convictions became final before the April 24 , 1996 effective date of the Antiterrorism and Effective Death Penalty Act ( AEDPA). Consequently, under 28 U.S.C. § 2244(d)(1), Sena was required to file his § 2254 petition on or before April 24, 1997. See Fisher v. Gibson , 262 F.3d 1135, 1142 (10th Cir. 2001) (holding that “[w]here a conviction became fi nal before AEDPA took effect, . . . the one year limitation period for a federal habeas petition starts on AEDPA’s effective date”), cert. denied , 535 U.S. 1034 (2002); United States v.
Hurst , 322 F.3d 1256, 1261 (10th Cir. 2003) (holding that “a [habeas petition] presented to the court on the anniversary date of atriggering event is within the ‘1-year period of limitation’ set out in . . . § 22 44(d)(1)”). Further, the one-year limitations period cannot be tolled under § 2244(d) (2) for the time Sena spent in state post-conviction proceedings because his state -court habeas petition was “not filed until after April 24, 1997, the end of the li mitations period for convictions, like [Sena’s], which became final before the effective date of AEDPA.” Fisher , 262 F.3d at 1143. In the proceedings before the magistrate judge, Sen a did not argue that the one-year limitations period should be extended beyo nd April 24, 1997 based on any of the grounds set forth in § 2244(d)(1)(B)-(D) . Likewise, he did not argue that the limitations period should be tolled on equ itable grounds. Instead, Sena argued that his due process claim was not “mature” until he had actually earned-5-

enough good time credits to become eligible for a r elease from prison, and he claimed that this had not occurred until the year p receding the filing of his petition. See R., Doc. 16 at 3-4. We disagree. In his § 2254 petition, Sena challeng ed the validity of the state district court’s sentencing order, and he all eged that the due process violation occurred in 1985 when the allegedly inval id sentencing order was entered. Id., Doc. 1 at 2-3. Similarly, in his answer to respon dents’ answer to his § 2254 petition, Sena claimed that his incarceratio n was unlawful because he had been imprisoned “pursuant to an invalid [sentencing] order.” Id. , Doc. 16 at 1. Accordingly, Sena’s due process claim was ripe in 1 985 when the state district court entered the sentencing order. Thus, we concl ude that jurists of reason would not debate the correctness of the magistrate judge’s determination that Sena’s § 2254 petition is time barred because he fa iled to file it on or before April 24, 1997. In his objections to the magistrate judge’s propose d findings and recommended disposition and in his opening brief inthis appeal, Sena claims that his § 2254 petition was timely filed because: (1) the Corrections Department has been awarding him good time credits since 1985; and(2) he did not discover that the Corrections Department was going to refuse to apply his good time credits to reduce his mandatory thirty-year sentence under N.M . Stat. Ann. § 31-21-10(A)-6-

until February or March 2001 when he first learned of this fact from his prison
case manager. Id. , Doc. 18 at 3-4; Aplt. Br. at II, X-XI. Even if w e give Sena the benefit of these allegations and construe his habea s petition to be a timely challenge to the execution of his sentence under 28 U.S.C. § 2241, Sena has failed to make a substantial showing of the denial of a constitutional right. At the time of his sentencing in 1985, N.M. Stat. A nn. § 31-21-10(A) provided that “[a]n inmate of an institution who wa s sentenced to life imprisonment as the result of the commission of a c apital felony becomes eligible for a parole hearing after he has served thirty yea rs of his sentence.” N.M. Stat. Ann. § 31-21-10(A) (1985 Cum. Supp.). Notably, § 3 1-21-10(A) did not address whether an inmate sentenced to life imprisonment co uld earn good time credits and have the credits applied to reduce the mandatory thirty-year sentence. This omission was significant because a separate statute provided that “[a]ny inmate confined in the penitentiary of New Mexico . . . may be awarded a deduction of not more than ten days’ meritorious good time pe r month based on good conduct . . . .” N.M. Stat. Ann. § 33-2-34(A) (198 5 Cum. Supp.). In 1989, the New Mexico Supreme Court issued an opi nion making it clear that § 31-21-10(A) takes precedence over § 33-2-34( A), and that an inmate sentenced to life imprisonment is not entitled to h ave the mandatory thirty-year sentence reduced based on good time credits. See Martinez v. New Mexico , 7723 In Martinez , 772 P.2d at 1305-06, the New Mexico Supreme Courtwas

addressing the 1987 versions of §§ 31-21-10(A) and 33-2-34(A). See N.M. Stat. Ann. §§ 31-21-10(A) and 33-2-34(A) (1987 Repl. Pamp .). However, for purposes of this case, the 1985 and 1987 versions of the statues are identical. -7- P.2d 1305, 1305-06 (N.M. 1989); 3 accord New Mexico v. Garcia , 837 P.2d 862, 865 n.5 (N.M. 1992). We therefore agree with the m agistrate judge that Sena has no basis for asserting a federal due process claim based on the refusal of the Corrections Department to release him before the en d of the thirty-year period, and this is the case regardless of whether the Corr ections Department previously had a practice of misapplying § 31-21-10(A). Cf. Stephens v. Thomas , 19 F.3d 498, 500-01 (10th Cir. 1994) (construing prior New Mexico statute enacted in 1955 that required inmates sentenced to life impris onment to serve a mandatory ten-year sentence before becoming eligible for paro le, and holding that “revocation of good time credits from a life term p risoner who has served less than ten years of his sentence . . . does not impli cate the Due Process Clause,” regardless of the Corrections Department’s “previou s practice of misapplying the law”).-8-

The application for a COA is DENIED and this matteris DISMISSED.

Entered for the Court

Deanell Reece Tacha Chief Judge