* This order and judgment is not binding precedent, e xcept under the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

### APR 24 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DUANE WILLETT, Petitioner-Appellant,

v. No. 00-4180 JIM SMITH, Warden, Utah State Prison; UTAH STATE PRISON, Respondents-Appellees. (D.C. No. 00-CV-274) (D.Utah)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE and MURPHY, 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner Duane Willett, a state prisoner appearin g pro se, seeks a certificate of appealability to appeal the districtcourt’s dismissal of his 28 U.S.C.2

§ 2254 petition for writ of habeas corpus as untime ly. We deny the request for a certificate of appealability and dismiss the appeal

. Willett was convicted by a jury in state court of c apital homicide in February 1994, and was sentenced to life in prison. The Utah Supreme Court affirmed his convictions on September 12, 1995, State v. Willett , 909 P.2d 218, 221 (Utah 1995), and his rehearing request was deni ed on December 27, 1995. Willett was granted an extension until March 27, 19 97, to file a state habeas petition, but did not file his petition until Septe mber 20, 1999. The Utah Supreme Court denied his habeas petition on October18, 1999. Willett filed his § 2254 petition on March 28, 2000 , contending (1) the trial court misinterpreted the Utah due process law ; (2) he received ineffective assistance of trial counsel because there was no pr etrial investigation and a conflict of interest; (3) the trial court's erroneo us ruling was a result of personal bias and/or prejudice; (4) a conspiracy existed that resulted in intimidation and fear to alibi witness testimony; (5) he was denied his Sixth and Fourteenth Amendment rights to present defense witnesses; (6) the trial court committed error in allowing the State to refile the original information; (7) the trial court committed error in not allowing a new preliminary h earing; (8) there was insufficient evidence to substantiate the convictio n; (9) the prosecutor introduced unreliable and uncorroborated hearsay testimony; (1 0) there was prosecutorial3

misconduct; (11) the State pursued a malicious pros ecution; and (12) he was denied a fair trial based on improper and prejudici al jury instructions. The district court directed respondents to respond to t he habeas petition. Respondents filed their response on May 25, 2000, alleging Will ett's habeas petition was barred by the statute of limitations. The magistrate court issued its report and recommen dation on September 26, 2000, finding Willett's habeas petition was tim e-barred and recommending that the petition be dismissed as untimely. The di strict court originally adopted the report and recommendation and dismissed the pet ition as untimely on October 12, 2000, finding Willett failed to file objections to the report. Although Willett's objections were filed October 16, 2000, the certificate of mailing indicated the objections were delivered to prison o fficials on October 6, 2000. Willett filed an objection to the dismissal order p ursuant to Federal Rule of Civil Procedure 59(e). On March 14, 2001, the district c ourt determined that Willett had filed timely objections to the magistrate's rep ort, vacated its October 12 order, re-adopted the magistrate's report, and dism issed Willett's habeas petition as untimely. As Willett filed his habeas petition on March 28, 2 000, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply. See Lindh v. Murphy , 521 U.S. 320, 336 (1997). Under 28 U.S.C. § 2244 (d)(1) and4

Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998), Willett had until April 23, 1997, to file his habeas petition. He di d not seek post-conviction relief in state court during the applicable limitation per iod and his application for postconviction relief filed in September 1999 did not t oll the running of the limitation period. Willett's request for a certificate of appealability is DENIED. The appeal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge