This order is not binding precedent, except under the doctrines of law of *

the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

We liberally construe Mr. Dembry’s pro se application. See Cummings v. 1

Evans, 161 F.3d 610, 613 (10th Cir. 1998).

F I LED

United States Court of Appeals

Tenth Circuit

April 10, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY DEMBRY,

Petitioner-Appellant,

v.

JAMES ABBOTT, Warden; JOHN

SUTHERS, The Attorney General of

the State of Colorado,

Respondents-Appellees.

No. 06-1287

(D.C. No. 05-CV-1071-ZLW-CBS)

(D. Colorado)

ORDER*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Anthony Dembry, a state prisoner appearing pro se, seeks a certificate of 1

appealability (COA) to challenge the district court’s denial of his application for a

writ of habeas corpus under 28 U.S.C. § 2254. Exercising jurisdiction under 28

U.S.C. § 2253(c)(1), we see no basis for appeal and deny a COA. 

Mr. Dembry was convicted in Colorado state court of reckless
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endangerment, sexual assault on a child, and sexual assault on a child by one in a

position of trust. The court imposed sentences of varying lengths to run

concurrently, the greatest of which was 20 years to life imprisonment. The

Colorado Court of Appeals affirmed Mr. Dembry’s conviction and the state

supreme court denied his petition for a writ of certiorari.

In his § 2254 habeas petition, Mr. Dembry raised six claims which we

group as follows: (1) he was denied his right to present a defense when the trial

court denied his motion to pierce the rape shield statute, and when it held that

testimony from his suppression hearing could be used to impeach any trial

testimony regarding his good character; (2) he was denied his right to a fair trial

when the court refused to sever his attempted manslaughter count from the sexual

assault counts, acted in a manner overtly partial to the victim, and denied his

challenge to a juror for cause; and (3) his sentence violated Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). A

magistrate judge reviewed Mr. Dembry’s claims and, on May 15, 2006,

recommended that the district court deny his application. Mr. Dembry submitted

objections to the magistrate judge’s recommendation in a response signed May

27. However, his objections were filed with the court on June 9. The district

court determined that the response was “untimely as it was not filed within ten

days of the May 15, 2006, Recommendation.” Rec., vol. I, doc. 39 at 1. 

Considering the recommendation on its merits nonetheless, the court found it was
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“fully supported by the record and the applicable law.” Id. at 2. The court

accepted and adopted the recommendation and denied Mr. Dembry’s application

for habeas relief. Id.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state

habeas petitioner “has no absolute entitlement to appeal a district court’s denial of

his petition. 28 U.S.C. § 2253.” Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). 

Before he may appeal, he first must obtain a COA. Otherwise, we have no

jurisdiction over the appeal. See id. at 336. A COA will issue only if petitioner

makes “a substantial showing of the denial of a constitutional right.” Slack v.

McDaniel, 529 U.S. 473, 483 (2000). To do so, petitioner must show “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. at 484 (citations and quotation

marks omitted). 

In determining whether the petitioner has made the required showing, we

review the claims presented in his § 2254 petition and generally assess their

merit. See Miller-El, 537 U.S. at 336. In doing so, we “look to the District

Court’s application of AEDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable amongst jurists of reason.” Id. Where

petitioner’s federal habeas claims were adjudicated on the merits in state court,

we will grant an application for a COA “only where the state court decision was
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‘contrary to, or involved an unreasonable application of , clearly established

Federal law, as determined by the Supreme Court . . .’ or was ‘based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.’ 28 U.S.C. § 2254(d).” Dockins v. Hines, 374 F.3d 935,

937 (10th Cir. 2004). 

First, we examine whether Mr. Dembry’s objections to the magistrate’s

recommendations were timely. See Vega v. Suthers, 195 F.3d 573, 579 (10th Cir.

1999) (“[A] litigant's failure to file timely objections to a magistrate's

[recommendation] waives appellate review of both factual and legal

determinations.”). The magistrate judge, in his May 15th recommendation,

advised Mr. Dembry that he had “ten days after service of a copy of the

Recommendation” to file any written objections. Rec., vol. I, doc. 36 at 26-27. 

See also 28 U.S.C. § 636(b)(1); Vega v. Suthers, 195 F.3d at 579. Mr. Dembry

mailed his objection to the recommendation on May 27, 2006, see Rec., vol. I,

doc. 38 at 2, but it was not filed with court until June 9, 2006. Id. The district

court concluded Mr. Dembry objections were not filed within the 10 day period. 

We evaluate the timeliness of Mr. Dembry’s objection according to the date

the document was signed and mailed, May 27th, and not the date it was filed. See

Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (per curiam); Marsh v.

Soares, 223 F.3d 1217, 1218 n.1 (10th Cir. 2000). Furthermore, we apply Federal

Rules of Civil Procedure 5, 6, and 72 when evaluating the timeliness of a party’s
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objection to a magistrate judge’s recommendation. See Theede v. U.S. Dep’t of

Labor, 172 F.3d 1262, 1266 (10th Cir. 1999). Where the provided period of time

for submission is less than eleven days, as it is here, “intermediate Saturdays,

Sunday, and legal holidays shall be excluded in the computation.” FED. R. CIV. P.

6(a). In addition, where service is made by mail, “[three] days are added after the

prescribed period would otherwise expire.” Id. at 6(e). Mr. Dembry mailed his

objections twelve days after the magistrate issued his recommendation. The

intervening period included one Saturday and one Sunday. Excluding these two

weekend days and considering the additional three day extension, Mr. Dembry’s

objections fell securely within the ten day limit. Thus, Mr. Dembry filed a

timely objection and preserved his right to appeal to this court.

 Although Mr. Dembry surpasses this timeliness hurdle, after reviewing the

record, the magistrate judge’s recommendation, and the law, we conclude the

district court’s application of AEDPA to petitioner’s claims did not create a result

that would be debatable amongst jurists of reason. We reject Mr. Dembry’s

application for a COA for substantially the same reasons set forth by the

magistrate judge in his thorough report and recommendation.

Mr. Dembry seeks leave to proceed in forma pauperis. Because Mr.

Dembry has failed to demonstrate the existence of “a reasoned, nonfrivolous

argument on the law and the facts in support of the issues raised on appeal,”

McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812-13 (10th Cir. 1997), we deny
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his request to proceed ifp.

Accordingly, we DENY Mr. Dembry’s request for a COA, DENY his

motion to proceed ifp, and DISMISS the appeal.

ENTERED FOR THE COURT,

Stephanie K. Seymour

Circuit Judge