* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### SEP 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
JIMMY JAKE HOLT,

Petitioner - Appellant, No. 98-2072
v. (D.C. No. CIV-97-782-JP/JHG) TIM LEMASTER, Warden, New Mexico State Penitentiary; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, (D. NM)

Respondents - Appellees.

ORDER AND JUDGMENT *
Before ANDERSON , McKAY , and LUCERO , Circuit Judges.
After examining Petitioner-Appellant’s brief and th e appellate record, this panel has determined unanimously that oral argumentwould not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without ora l argument. Pursuant to a guilty plea, Petitioner was convicted in New Mexico state court in 1995 on cocaine trafficking and burglary c harges. He was sentenced to a-2-

term of thirty-eight years imprisonment of which th irteen years are suspended. Although Petitioner did not directly appeal his con victions to New Mexico courts, he filed two state petitions for writ of habeas corpus and a petition for writ of certiorari to the New Mexico Supreme Court, all of which were denied. On June 6, 1997, he filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed Petiti oner’s petition with prejudice because it determined that the section 2254 petitio n was time-barred by the AntiTerrorism and Effective Death Penalty Act [AEDPA]. See 28 U.S.C. § 2244(d). The district court denied Petitioner’s motion for acertificate of appealability. Petitioner appeals and requests a certificate of ap pealability from this court. We agree with the district court that Petitioner’s motion is untimely and is barred by 28 U.S.C. § 2244(d). AEDPA applies to th is case because Petitioner filed his section 2254 motion on June 6, 1997. Pet itioner’s state court conviction became final in October 1995. Because his convicti on was final before April 24, 1996, Petitioner had until April 24, 1997, to file a habeas petition pursuant to section 2254. See 28 U.S.C. § 2244(d); Miller v. Marr , 141 F.3d 976, 977 (10th Cir.), petition for cert. filed(U.S. June 10, 1998) (No. 98-5195); United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). “The time du ring which a properly filed application for State post-convictio n or other collateral review . . . is pending shall not be counted toward any period of limitation under-3-

this subsection.” 28 U.S.C. § 2244(d)(2). For purposes of this case only, and without deciding whether tolling could push a petit ioner’s filing deadline past April 24, 1997, we assume that Petitioner’s applications for post-conviction review were properly filed and tolled the one-year statute of limitations for thirtythree (33) days. See id. ; Hoggro v. Boone , No. 97-6383, 1998 WL 419727 (10th Cir. June 24, 1998). Therefore, his motion became time-barred on May 27, 1997. Although his petition was filed in the district cou rt on June 6, 1997, even if it had been filed on May 31, 1997, see Fed. R. App. P. 25(a), as Petitioner claims, his filing was untimely and is therefore barred by 28 U .S.C. § 2244(d). Because Petitioner’s section 2254 motion was time-b arred, we deny him a certificate of appealability. We also deny his Mot ion for Release Pending Final Judgment. Generally, because of the jurisdictional nature of applications for certificates of appealability, a respondent is not required to file a response brief to a petitioner’s application until this court issues a certificate of appealability. See Simmonds , 111 F.3d at 740-41. Therefore, Respondent’s noti ce of his intent not to file a merits brief was consistent with this cou rt’s procedure and did not represent a default on the merits. Finally, because we deny Petitioner a certificate o f appealability, we deny his two motions to obtain and to supplement the rec ord with district court files, transcripts, and tapes that pertain to his case.-4-

DENIED AND DISMISSED. Entered for the Court Monroe McKay Circuit Judge