* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

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

### FEB 18 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PERRY LEE CONNER, Petitioner - Appellant, vs. TIM LEMASTER, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents - Appellees. No. 98-2112 (D.C. No. CIV-97-878-SC) (D.N.M.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Mr. Conner, an inmate appearing pro se and in formapauperis, seeks to appeal from the district court’s adoption, over his objection, of the proposed findings and recommendations of the magistrate judg e. The district court dismissed Mr. Conner’s habeas action with prejudice , on the grounds that it was- 2 -

untimely by one day, and also on the merits conclud ing that Mr. Conner had not established that his plea was involuntary or that i t was the product of ineffective assistance of counsel. For different reasons than the district court, we c onclude that Mr. Conner’s federal habeas petition was untimely under the one- year limitation provision in 28 U.S.C. § 2244(d)(1) as extended by United States v. Simmonds , 111 F.3d 737, 745-46 (10th Cir. 1997) (extending period to April 24, 1997), when the tolling provision for time spent pursuing state postconvict ion relief, 28 U.S.C. § 2244(d)(2), is properly applied. See Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). Although his federal habeas petition reflects a fil ing date of July 1, 1997, a review of the file indicates that Mr. Conner’s habe as petition, together with a transmittal letter were actually received by the di strict court on June 30, 1997, and filed a day later. See Memo from Pro Se Section to Intake Section dated J une 30, 1997 (lodged in correspondence section of file) . Moreover, Mr. Conner indicated that his “pro se habeas petition was . . . placed in the Penitentiary of New Mexico legal mailbox on June 26, 1997.” R. doc . 16 at 2 (objections). The federal petition reflects that it was executed on J une 26, 1997. R. doc. 1. We have recognized that an inmate may rely upon the “m ailbox rule” of Houston v. Lack , 487 U.S. 266, 270 (1988), in filing a federal hab eas petition; accordingly,- 3 -

Mr. Conner’s federal petition was deemed filed as o f the date he placed it in the prison’s legal mail system. See Hoggro , 150 F.2d at 1226 n.3. However, Mr. Conner’s federal petition is untimely even with the June 26, 1997 filing date. He may toll only two days from t he April 24, 1997 federal deadline—the day his state habeas petition was file d (March 24, 1997) and the day it was denied (March 25, 1997). See 28 U.S.C. § 2244(d)(2). He may not rely upon the time spent pursuing a writ of certior ari in the New Mexico Supreme Court because his certiorari petition, filed on May2, 1997, was not filed within the requisite thirty day period from the state district court’s March 25, 1997 denial of the petition. See N.M.R. Ann., N.M.R. App. P § 12-501(B) (30-day period); Hoggro , 150 F.3d at 1226 n.4. A prerequisite for tolling the entire period from the filing of a state petition to the denial of a writ of certiorari by the state supreme court is a timely filed certiorari petition. See Barnett v. Lemaster , No. 98-2139, slip op. at 3-5 (10th Cir. Feb. 9, 1999). Although the state supreme cou rt indicated that it had considered the petition, it expressed no opinion onthe petition’s timeliness in its pro forma order. We have no indication that the Ne w Mexico Supreme Court has adopted a “mailbox rule” for inmate certiorari peti tions and would consider the petition timely; therefore, we must follow the lang uage of the appropriate state rules and § 2244(d)(2) with its requirement of “pro perly filed” requests for- 4 -

postconviction relief. Accordingly, we DENY a certificate of appealabilityand DISMISS the appeal. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge