* Pursuant to Fed. R. App. P. 43(c)(2), John Suthers has been substituted for Ken

Salazar as Attorney General of the State of Colorado. 

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

### June 1, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NAM NGUYEN, Petitioner - Appellant,

v. GARY GOLDER, Warden, Sterling Correctional Facility; JOHN SUTHERS * , Attorney General of the State of Colorado, Respondents - Appellants. No. 04-1054 (D. Colorado) (D.Ct. No. 03-Z-2396)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DENYING IN FORMA PAUPERIS

Before SEYMOUR , LUCERO , and O’BRIEN , 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.1 We liberally construe Nguyen’s pro se application. See Ledbetter v. City of

Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003). -2- Nam Nguyen applies pro se 1 for a certificate of appealability (COA) from the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus and moves to proceed in forma pauperis ( ifp ) on appeal pursuant to 28 U.S.C. § 1915 and F ED . R. A PP . P. 24. The district court denied Nguyen’s reques t for a COA and his motion to proceed ifp . There being no basis for an appeal, we also deny Nguyen’s COA application and motion to pr oceed ifp

. I. BACKGROUND In 1996, Nguyen (who is Vietnamese) pled guilty in a Colorado state court to one count of second degree murder and was senten ced to thirty-six years imprisonment. The judgment of conviction was enter ed on September 9, 1996. Nguyen did not file a direct appeal. In 1999, Nguy en filed a petition for postconviction relief in state court, which was denied. Nguyen appealed to the Colorado Court of Appeals, which affirmed the trial court’s decision in October 2002. The Colorado Supreme Court denied review in June 2003. On November 26, 2003, Nguyen filed a petition for w rit of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States D istrict Court for the District of Colorado alleging violations of the Sixth and Fourt eenth Amendments and that his sentence violated Apprendi v. New Jersey , 530 U.S. 466 (2000). However,2The district court did not specifically address Nguyen’s argument under 28

U.S.C. § 2244(d)(1)(B). -3- because the petition was signed on October 29, 2003 , the district court deemed it filed on that date pursuant to the prisoner mailboxrule. See Marsh v. Soares , 223 F.3d 1217, 1218 n.1 (10th Cir. 2000). On December 24, 2003, the court ordered Nguyen to show cause why his § 2254 petition shouldnot be dismissed as untimely. See 28 U.S.C. § 2244(d). Nguyen responded, claiming h e does not speak or understand the English language and allegi ng the state prison hindered him from filing his petition on time by failing to provide him with a Vietnamese interpreter and/or legal materials written in Vietn amese. He asserted that because of this state-created impediment, the statute of li mitations did not begin to run until January 1999, when the impediment was removed

. See 28 U.S.C. § 2244(d)(1)(B). On February 4, 2004, the district court denied Nguy en’s petition as untimely. The court concluded Nguyen’s lack of Eng lish proficiency did not warrant equitable tolling 2 and that his Apprendiclaim was barred because Apprendidid not apply retroactively to cases on collateral review. Thereafter, Nguyen petitioned the district court for a COA and moved to proceed ifp on appeal; the court denied both motions.-4- II. DISCUSSION Unless we issue a COA, Nguyen may not appeal the di smissal of his § 2254 petition. 28 U.S.C. § 2253(c)(1)(A). “[Section] 2 253(c) permits the issuance of a COA only where a petitioner has made a substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (quotations omitted). To make the requisite showing, a petitio ner must demonstrate that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Id. (quotations omitted). “When the district court denies a habeas petition on procedural ground s . . ., a COA should issue when the prisoner shows, at least, that jurists of reaso n would find it debatable whether the petition states a valid claim of the denial of a co nstitutional right and that jurists of reason would find it debatable whether the districtcourt was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). With these principles in mind, we have carefully re viewed the record and the district court’s order. We agree Nguyen’s § 2254 p etition is untimely. The Antiterrorism and Effective Death Penalty Act (AEDP A) became effective April 24, 1996. In general, the AEDPA provides state prisone rs a one-year deadline from the date their convictions become final by the conclusi on of direct review in which to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1)(A). Here, Nguyen’s3 Rule 4(b)(1) of the Colorado Appellate Rules provides a defendant forty-five

days in which to file a direct appeal. Therefore, Nguyen’s September 9, 1996 conviction became final October 24, 1996, when the time for filing a direct appeal with the Colorado Court of Appeals expired. This is true even though he did not file a direct appeal. See28 U.S.C. § 2244(d)(1)(A) (the one-year limitations period shall run from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review ”) (emphasis added).

-5- conviction became final on October 24, 1996; 3 and the one year period of limitations commenced the next day, October 25, 1996. Therefore , he had up to and including October 25, 1997, in which to file his § 2254 petit ion. See United States v. Hurst , 322 F.3d 1256, 1260 (10th Cir. 2003). He did not f ile it until October 29, 2003. Thus, absent equitable tolling or application of § 2244(d)(1)(B), his petition is untimely. Nguyen claims he cannot read, speak or write the En glish language. He states that after his conviction he was sent to a prison f acility in Minnesota where he was the only Vietnamese speaking inmate. He claims to have approached the prison law librarian who informed him he could not help Nguyen unless he could find a translator. According to Nguyen, he did not find atranslator until January 1999, when he was transferred to a prison facility in Lim on, Colorado. He alleges this lack of access to legal services and materials in Vietna mese constituted a state-created impediment under 28 U.S.C. § 2244(d)(1)(B) and viol ated his constitutional right of access to the courts. Therefore, under § 2244(d)(1 )(B), he asserts the statute of-6-

limitations did not begin to run until January 1999 , the date the state-created impediment was removed. In the alternative, Nguyen claims the statute of limitation should be equitably tolled during the time he was d etained in Minnesota. We disagree. Section 2244(d)(1)(B) provides an exception to the general rule that the oneyear statute of limitations for filing a § 2254 hab eas petition begins to run from the date the petitioner’s conviction becomes final by t he conclusion of direct review. This exception occurs when the state creates an imp ediment which prevents the petitioner from filing his petition on time. In su ch circumstances, the statute of limitations does not begin to run until the impedim ent is removed. In addition to § 2244(d)(1)(B), the one-year statute of limitations is subject to equitable tolling. Marsh , 223 F.3d at 1220. “However, this equitable remedy is only available when an inmate diligently pursues his claims and demonstrat es that the failure to timely file was caused by extraordinary circumstances beyond hi s control.” Id. Neither § 2244(d)(1)(B) nor equitable tolling saves Nguyen’s petition. Even if we were to commence the statute of limitations cloc k in January 1999, as Nguyen suggests, he still cannot account for the cumulativ e fourteen month delay in filing once he was moved to the Colorado facility. The re cord establishes that after his transfer to Colorado, Nguyen waited ten months (unt il October 25, 1999) to challenge his conviction and sentence in state court. After exhausting his state court4Section § 2244(d)(2) tolls the statute of limitations during the time “a properly

filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . .” A petition for writ of certiorari to the United States Supreme Court is not an application for State post-conviction or other collateral review. Rhine v. Boone , 182 F.3d 1153, 1155-56 (10th Cir. 1999). Therefore, the time for filing a petition for certiorari with the United States Supreme Court is notconsidered in the § 2244(d)(2) tolling calculation. Consequently, Nguyen’s state postconviction proceedings were final upon the Colorado Supreme Court’s denial of review in June 2003.

5Nguyen has filed a motion to remand this case to the Colorado Supreme Court, claiming his statute of conviction is unconstitutional pursuant to Apprendi and Blakely v. Washington , 124 S.Ct. 2531 (2004). However, neither Apprend i nor Blakelyare retroactive to cases on collateral review. United States v. Price , 400 F.3d 844, 849 (10th Cir. 2005) (holding Blakelydoes not apply retroactively to convictions that were already final at the time Blakelywas decided); United States v. Mora , 293 F.3d 1213, 1219 (10th Cir. 2002) (

Apprendi does not apply retroactively to initial habeas petitions). Thus, his motion to remand is denied. -7- remedies in June 2003, 4 he waited an additional four months (until October29, 2003) in which to file his federal habeas petition. Ther efore, even applying all reasonable tolling, Nguyen’s petition is untimely. 5
III. CONCLUSION Nguyen’s requests for a COA and to proceed ifp on appeal are DENIED . His motion to remand this case to the Colorado Supreme Court is also DENIED . This appeal is DISMISSED

. Entered by the Court: Terrence L. O’Brien United States Circuit Judge