* This order and judgment is not binding precedent, except under the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

### DEC 16 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TOBY SANCHEZ, JR., Petitioner-Appellant,

v. RON LYTLE, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees. No. 98-2086 (D.C. No. CIV-97-1207) (D. N.M.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Toby Sanchez, Jr., a New Mexico state prisoner appe aring pro se, seeks a certificate of appealability to appeal the districtcourt’s dismissal of his 28 U.S.C.1 Sanchez mailed the habeas petition on September 5 , 1997, and it was

filed on September 10, 1997. For purposes of this opinion, we have given him the benefit of the “mailbox rule” outlined in Houston v. Lack , 487 U.S. 266, 270 (1988) (pro se prisoner’s notice of appeal is “file d” when it is delivered to prison officials for forwarding to clerk’s office). -2- § 2254 habeas petition. We deny a certificate of appealability and dismiss the appeal. Sanchez was convicted in 1988 of first-degree murde r in state court and his conviction was affirmed in State v. Sanchez , 785 P.2d 224 (N.M. 1989). He sought post-conviction relief in April 1994 by fili ng a habeas petition in state court, which was denied on May 17, 1994, and the Ne w Mexico Supreme Court denied review on June 17, 1994. Sanchez filed a 28 U.S.C. § 2254 habeas petition in federal court later in 1994, but while it was still pending, he moved to voluntarily dismiss the action without prejudice. Sanchez alleges his purpose in moving to dismiss was to allow him time to exhaust his state court remedies on his claim of factual innocence. The federal court dismissed the habeas petition without prejudice on April 15, 1996. Over a year l ater, on April 21, 1997, Sanchez filed a habeas petition in state court. Th e petition was denied on July 28, 1997, and the New Mexico Supreme Court denied revie w on August 22, 1997 (Sanchez allegedly received a copy of the order on August 26, 1997). Sanchez filed the instant habeas petition on September 5, 1997. 1 Respondents moved to dismiss for untimely filing. The magistrate judge-3-

concluded the petition was untimely filed and shoul d be dismissed pursuant to 28 U.S.C. § 2244(d). The district court adopted the m agistrate’s report and dismissed the action with prejudice. To obtain a certificate of appealability, Sanchez m ust 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 differentl y, or that the questions deserve further proceedings.” United States v. Sistrunk , 111 F.3d 91 (10th Cir. 1997). Congress amended “the long-standing prior practice in habeas corpus litigation that gave a prisoner virtually unlimited amounts of time to file a habeas petition in federal court,” on April 24, 1996, and “established a one-year period of limitations for habeas petitions.” Hoggro v. Boone , 150 F.3d 1223, 1224 (10th Cir. 1998). The one-year period generally begins t o run from “the date on which the judgment became final by the conclusion of dire ct review or the expiration of the time for seeking such review.” 28 U.S.C. § 224 4(d)(1)(A). For prisoners whose convictions became final prior to April 24, 1 996, the new limitation period could have eliminated entirely an opportunity to fi le a federal habeas petition. Recognizing this problem, this court has held “thatfor prisoners whose convictions became final before April 24, 1996, the one-year statute of limitations does not begin to run until April 24, 1996.” Hoggro , 150 F.3d at 1225; United-4-

States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). The one-year limitation period can be tolled by ong oing post-conviction litigation in state court. See Hoggro , 150 F.3d at 1226. In particular, 28 U.S.C. § 2244(d)(2) provides “[t]he time during which a prop erly filed application for State post-conviction or other collateral review wi th respect to the pertinent judgment or claim is pending shall not be counted t oward” the one-year period of limitation. Applying these principles, we agree that Sanchez’ f ederal habeas petition was untimely and was therefore barred by § 2244(d). Because his state conviction became final well prior to Congress’ implementationof the new limitation period, his one-year period for filing a federal habeas pet ition 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. Th e 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 prio r to the filing of the instant habeas petition. Even giving him the benefit of ma iling time and thus assuming the limitation period did not begin running again u ntil August 26, 1997, it would have expired on August 29, 1997. Sanchez argues the one-year limitation period shoul d have been equitably tolled because of his incarceration outside the state of New Mexico and his lack-5-

of access to legal materials. According to Sanchez , prison overcrowding caused his transfer out of state in December 1995. He was allegedly returned to New Mexico in April 1996, but did not receive his legal materials until July 1996. Sanchez fails to specify how his alleged lack of le gal materials prevented him from filing his claim of factual innocence via a ha beas petition in state court. Indeed, his claim is undermined by the fact that ev en after he allegedly received his legal materials, he waited approximately nine m onths to file his state habeas petition. Moreover, by his own admission, we note Sanchez remained silent about his claim of factual innocence from 1988 until 1996 . We conclude it was Sanchez’ lack of diligence rather than his alleged lack of access to legal materials that prevented him from filing a timely state habeas petition. See Miller v. Marr , 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 119 S. Ct. 210 (1998). Sanchez next argues the one-year limitation period violates the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, which prohi bits suspension of the writ of habeas corpus. We disagree. Although we have ackn owledged “[t]here may be circumstances where the limitation period at least raises serious constitutional questions and possibly renders the habeas remedy in adequate and ineffective,” Miller , 141 F.3d at 978, those circumstances are not pres ent here. It was not the-6-

one-year limitation period that prevented Sanchez f rom obtaining federal review of the legality of his conviction, but rather his l ack 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 fede ral courts. In enacting the Antiterrorism and Effective Death Penalty Act, of w hich § 2244 is a part, “Congress intended to ‘reduce federal intrusion int o state criminal proceedings.’” Lovasz v. Vaughn , 134 F.3d 146, 148 (3d Cir. 1998) (quoting Banks v. Horn , 126 F.3d 206, 213 (3d Cir. 1997)). In any event, we ag ain emphasize the limitation period did not deprive Sanchez of his opportunity f or federal review; rather Sanchez himself failed to pursue his available reme dies in a timely fashion. Sanchez’ application for a certificate of appealabi lity is DENIED and the appeal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge