* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES J. McMILLIAN,

Petitioner-Appellant,

v. BOB HICKOX; ATTORNEY GENERAL FOR THE STATE OF COLORADO,

Respondents-Appellees. No. 00-1151 (District of Colorado) (D.C. No. 99-Z-2150)

ORDER AND JUDGMENT *

Before BRORBY , KELLY , 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.-2-

Proceeding pro se , Charles J. McMillian seeks a certificate of appea lability (“COA”) from this court so he can appeal the distri ct court’s dismissal of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254 pet ition unless the petitioner first obtains a COA). McMillian also filed a motion seeking to proceed in forma pauperis on appeal; that motion is granted. In his § 2254 petition, McMillian stated that he pl eaded guilty in Colorado state court to conspiracy to commit first degree mu rder, retaliation against a witness, second degree murder, and first degree agg ravated motor vehicle theft. He further stated that a judgment of conviction was entered in Colorado state court on June 24, 1994. McMillian asserts that he did not file a direct appeal. McMillian’s § 2254 petition was not filed with the United States District Court for the District of Colorado until November 5, 1999

. Recognizing that McMillian’s Colorado state convict ion became final prior to the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the district court noted that, in the ab sence of any reason to toll the limitations period, McMillian’s § 2254 petition sho uld have been filed prior to April 24, 1997. See Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998) (holding that a state prisoner has one year from th e effective date of the AEDPA to file a § 2254 habeas petition but that the one-y ear period is tolled by any time-3-

spent pursuing post-conviction relief in state court). Accordingly, the district court issued an order to show cause requesting thatMcMillian demonstrate why his § 2254 petition should not be dismissed as unti mely. McMillian was specifically asked to provide the court with additi onal information relating to any post-conviction proceedings he initiated in Colorad o state court. McMillian filed a response to the order to show cau se wherein he contended that he had filed a post-conviction motio n pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure on May 29, 1997. He further claimed that the Colorado district court denied this Rule 3 5(c) motion on February 18, 1998 and the Colorado Court of Appeals affirmed the denial on April 15, 1999. McMillian then contended he filed a petition for re hearing on April 22, 1999. McMillian claimed the petition for rehearing was de nied on May 20, 1999. McMillian also claimed he filed a petition for a wr it of certiorari to the Colorado Supreme Court on June 15, 1999 and that the petitio n was denied on September 27, 1999, with the mandate issuing on October 25, 1 999. Based on the information provided by McMillian, the district court concluded that McMillian’s § 2254 petition was time -barred because it was filed well after the April 23, 1997 deadline and was not tolled by any of the state postconviction proceedings. The district court noted t hat the state post-conviction proceedings were not commenced until May 29, 1997, i.e. , after the one-year1 This court liberally construes the motion to which the Petition for Writ of

Certiorari and the Order were attached as a Motion to Supplement the Record and hereby grants that motion. Additionally, we note t hat the Petition for Writ of -4- limitations period had already expired. Consequent ly, the district court dismissed McMillian’s § 2254 petition and denied his request for a COA. In this appeal, McMillian has filed with this courtnumerous motions and briefs, including a motion purportedly filed pursuant to Rule 60(b) the Federal Rules of Civil Procedure and a Motion to Amend Appl ication for Certificate of Appealability. We construe all of these various fi lings as an application for a COA together with an opening brief. On appeal, McM illian argues that the oneyear limitations period should be tolled because he initiated state post-conviction proceedings before the April 23, 1997 deadline. Mc Millian argues that his mental impairment and lack of legal expertise cause d him to erroneously inform the district court that his post-conviction proceed ings were not initiated until after April 23, 1997. In support of his argument, McMillian has provided this court with a copy of a document entitled Petition f or Writ of Certiorari. This petition appears to have been filed with the Colora do Supreme Court on January 6, 1997, more than two months before the expiration of the one-year limitations period. McMillian has also provided this court with a copy of an order entered by the Colorado Supreme Court on May 22, 1997, apparently denying the Petition for Writ of Certiorari. 1 This order was entered on May 22, 1997, one weekCertiorari refers to an “adverse decision in the Co lorado Court of Appeals on

November 14, 1996.” Although McMillian has not pro vided this court with a copy of that decision or a copy of the underlying p leadings, those documents may also be necessary to accurately determine the timel iness of McMillian’s § 2254 petition. -5- before McMillian filed the Rule 35(c) motion of whi ch he informed the district court. In the Petition for Writ of Certiorari, McM illian clearly raised the one issue raised before the district court, i.e. , he was denied due process because his trial attorney failed to assert his mental impairme nt as an affirmative defense.

McMillian acknowledges that he failed to correctly inform the district court of the date he initiated post-conviction proc eedings but argues that this failure was the result of his mental impairment andlack of legal expertise. Although rarely exercised, this court has the discr etion to consider arguments not considered by the district court. See Anixter v. Home-Stake Prod. Co. , 77 F.3d 1215, 1229 (10th Cir. 1996). We conclude that the facts in this case warrant our consideration of the argument raised by McMillian f or the first time in this appeal. Because the district court denied McMillian’s habea s petition on procedural grounds, it did not reach his underlying constitutional claims. Under these circumstances, McMillian is not entitled to aCOA unless he can show, “at least, that jurists of reason would find it debatab le whether the petition states a-6-

valid claim of the denial of a constitutional rightand that jurists of reason would find it debatable whether the district court was co rrect in its procedural ruling.” Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000). This court has reviewed McMillian’s application fora COA, his appellate brief, the district court’s Order dated March 24, 2 000, and the entire record on appeal including the additional information not pre sented to the district court. That review demonstrates that McMillian has made a showing that jurists of reason would find it debatable whether the districtcourt was correct in its procedural ruling. Additionally, this court has t aken a “quick look” at the underlying constitutional claim raised in McMillian ’s habeas petition and concludes that “[o]n its face, the petition alleges the denial of a constitutional right.” Paredes v. Atherton , 224 F.3d 1160, 1161 (10th Cir. 2000). Accordingl y, this court grants McMillian a COA on the issue of whether and to what extent the one-year limitations period should be tolled un der 28 U.S.C. § 2244(d)(2),
vacates the order dismissing McMillian’s habeas petition, and remands to the district court for a determination of the timelines s of McMillian’s habeas petition.-7-

This court, however, expresses no opinion on the ul timate disposition of the substantive claim raised in McMillian’s petition. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge