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F I LED

United States Court of Appeals

Tenth Circuit

April 25, 2007

Elisabeth A. Shumaker

Clerk of Court

 UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

IBN OMAR-MUHAMMAD,

Petitioner-Appellant,

v.

JOE WILLIAMS, Warden,

Respondent-Appellee.

No. 06-2308

(D.C. No. CIV-97-1043-MV/RLP)

(D. N.M.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Petitioner-Appellant Ibn Omar-Muhammad seeks a certificate of

appealability ("COA") to appeal the district court's denial of his Fed. R. Civ. P.

Rule 60(b)(6) motion for relief from the district court's order of December 29,

2000, dismissing his writ of habeas corpus under 28 U.S.C. § 2254 as untimely

filed. We discern no error in the district court's disposition and thus deny the

COA and dismiss this appeal. 

I

On October 28, 1987, Mr. Omar-Muhammad was convicted in Curry County

District Court, New Mexico, for first-degree murder. He appealed his conviction
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in state court and, ultimately, the New Mexico Supreme Court affirmed his

conviction on October 26, 1988. Seven years later, Mr. Omar-Muhammad filed a

petition for a writ of habeas corpus in state court. Mr. Omar-Muhammad’s initial

petition in federal court, filed under 28 U.S.C. § 2254 in the United States District

Court for the District of New Mexico, was dismissed without prejudice on April 8,

1996, because the district court found that he had not yet exhausted all of his

claims in state court. On April 23, 1997, Mr. Omar-Muhammad returned to state

court with a petition for writ of habeas corpus, which was denied on July 11, 1997,

and his petition for writ of certiorari to the New Mexico Supreme Court was

denied on July 24, 1997.

Having now exhausted his state court remedies, on August 6, 1997, Mr.

Omar-Muhammad refiled his petition in federal district court. Ultimately, on

December 29, 2000, the district court dismissed the petition, ruling that the

applicable one-year statute of limitations period for habeas petitioners in state

custody under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244(d)(1), expired on July 25, 1997 – that is, the day

after the New Mexico Supreme Court finalized its disposition of his state habeas

claim. As the district court saw it, Mr. Omar-Muhammad’s federal habeas

petition, filed on August 6, was twelve days late. The district court also denied

Mr. Omar-Muhammad’s request for a COA. (Aplt. App. at 101-03.). Mr. OmarMuhammad then sought a COA from us, which we denied on August 24, 2001,
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noting that his petition was not filed within AEPDA’s one-year statute of

limitations, that the mailbox rule did not apply to New Mexico cases, and that

circumstances in Mr. Omar-Muhammad’s case did not warrant equitable tolling. 

See Omar-Muhammad v. Williams, 17 Fed. Appx. 898 (10th Cir. Aug. 24, 2001)

(unpub.).

Approximately three years later in 2004, we decided Serrano v. Williams,

383 F.3d 1181 (10th Cir. 2004). In that case, we held AEDPA’s one-year statute

of limitations applicable to federal habeas petitions in state custody, 28 U.S.C.

§ 2244(d)(1), should be tolled during the 15-day period allowed under state law

for filing a petition for rehearing with the New Mexico Supreme Court following

its denial of a petition for writ of certiorari. Id. at 1187.

Nearly two years after Serrano, on August 29, 2006, Mr. Omar-Muhammad

filed a motion pursuant to Fed. R. Civ. P. 60(b)(6) with the United States District

Court for the District of New Mexico. (Aplt. App. at 107-124). In his motion, Mr.

Omar-Muhammad claimed that, based on our decision in Serrano, the dismissal of

his federal habeas petition in 1997 was improper. Specifically, he argued that, had

the district court tolled the AEDPA limitations period for the 15-day period

allowed under Serrano, his 1997 federal habeas petition would have been 3 days

early rather than 12 days late. That is, according to Mr. Omar-Muhammad, the

New Mexico Supreme Court denied certiorari on July 24, 1997, and pre-Serrano

the AEDPA limitations period expired the next day, July 25. But, post-Serrano,
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the limitations period would have been tolled for 15 days after July 24, or until

August 9. 

The district court denied Mr. Omar-Muhammad’s Rule 60(b)(6) motion on

September 25, 2006. It pointed to Gonzalez v. Crosby, 545 U.S. 524, 535 (2005),

in which the Supreme Court held that an appellate court opinion liberalizing the

calculation of a limitations period but decided after the final dismissal of a habeas

petition as untimely does not constitute “extraordinary circumstances” sufficient to

“provide grounds for reconsideration” under Rule 60(b)(6). Dist. Ct. Order of

Sept. 25, 2006, at 3 (Aplt. App. at 125-128.). Mr. Omar-Muhammad then sought a

COA from the district court, but the district court has not ruled on the request for a

COA within 30 days and so we must deem the request denied. See 10th Cir. R.

22.1(c). Having failed to persuade the district court, Mr. Omar-Muhammad now

seeks a COA in this court.

II

We may issue a COA only if the petitioner makes “a substantial showing of

the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). To do so, a

petitioner must “show[], at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reasons would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis

added). We do not believe that Mr. Omar-Muhammad has met this burden. In
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order for Mr. Omar-Muhammad to obtain relief under Rule 60(b)(6), he must

show, inter alia, “extraordinary circumstances” which, the Supreme Court has

indicated “will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535

(citations omitted). Even more problematically for Mr. Omar-Muhammad, the

Supreme Court in Gonzalez rejected a claim for Rule 60(b)(6) relief involving

what petitioner himself concedes is “a fact situation very similar to that in [his]

case.” Petitioner’s Br. at 13. 

Some time after Mr. Gonzalez’s habeas claim was dismissed as untimely,

the Supreme Court announced a new tolling rule in Artuz v. Bennett, 531 U.S. 4, 8

(2000), that would have, had it been in force earlier, permitted Mr. Gonzalez to

pursue his habeas petition. On the basis of the Artuz ruling, Mr. Gonzalez filed a

Rule 60(b)(6) motion seeking to reopen his habeas petition. Ultimately, the

Supreme Court ruled that its new decision in Artuz did not create the sort of

“extraordinary circumstances” required by Rule 60(b)(6) to reopen Mr. Gonzalez’s

case. In denying relief, the Supreme Court explained that “[i]t is hardly

extraordinary that subsequently, after petitioner’s case was no longer pending, this

Court arrived at a different interpretation [of a statutory limitations period] . . . .

[N]ot every interpretation of the . . . statutes setting forth the requirements for

habeas provides cause for reopening cases long since final.” Gonzalez, 545 U.S.

at 537. 
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We see no way in which we might arrive at a different result in this case. 

The Supreme Court held that its new limitations period ruling in Artuz did not

supply the sort of “extraordinary circumstance” necessary for retroactively

reopening final dispositions of habeas petitions such as Mr. Gonzalez’s, and one

need only substitute Serrano for Artuz in that equation to see how we are

compelled to deny Mr. Omar-Muhammad’s requested relief. Mr. OmarMuhammad acknowledges the great similarities between his case and Mr.

Gonzalez’s, conceding that Gonzalez “[a]t first blush . . . would appear to

definitively resolve” his appeal, Petitioner’s Br. at 14, but asks us to distinguish

Gonzalez on the basis that Serrano corrected what had been a clearly erroneous

interpretation of AEDPA while Artuz decided a harder, closer limitations question. 

As Mr. Omar-Muhammad puts it, this case presents the requisite “extraordinary

circumstance” under Rule 60(b)(6) because of the obvious incorrectness of the

district court’s limitations analysis in 2000 corrected by Serrano in 2004. 

Even if we felt able to disregard the Supreme Court’s guidance in Gonzalez

on the basis of such a fine distinction, we are unable to accept the premise on

which Mr. Omar-Muhammad’s argument is based. That is, we cannot say, as Mr.

Omar-Muhammad would have us, that it was obvious before Serrano to all comers

that a 15-day tolling period under AEDPA was required after a final disposition by

the New Mexico Supreme Court. 
 Similarly, two of the three out-of-circuit cases cited as supporting 1

authority in Serrano were decided after the district court dismissed Mr. OmarMuhammad’s habeas petition. See Serrano, 383 F.3d at 1185 (citing Jones v.

Nagle, 349 F.3d 1305, 1308 (11th Cir. 2003); Williams v. Bruton, 299 F.3d 981,

983-84 (8th Cir. 2002); Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000)).

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By way of example, Mr. Omar-Muhammad, represented by counsel, never

noted such an allegedly obvious error at any time in the more than seven years

between the filing of his federal habeas petition on August 6, 1997, and our

decision in Serrano in September 2004, even while he did raise many other tolling

arguments. Neither did any of the many judges who reviewed his petition notice

the argument he now seeks to raise. But, perhaps of even greater significance still,

the district court’s interpretation of AEDPA was at the time not obviously

foreclosed by established Tenth Circuit law as Mr. Omar-Muhammad suggests. In

fact, as the Serrano opinion makes clear, there was no established Tenth Circuit

law on this specific topic at the time the district court ruled. Indeed, in Serrano

we relied almost exclusively on our prior holding in Gibson v. Klinger, 232 F.3d

799 (2000), which itself was decided after the district court dismissed Mr. OmarMuhammad’s habeas petition, and which expressly recognized that it addressed a 1

then-unresolved question of law in the Tenth Circuit. See id. at 803-04 (“In Rowe

v. LeMaster, [225 F.3d 1173, 1174 (10th Cir. 2000),] . . . [b]ecause we focused our

inquiry on another tolling question, we did not specifically analyze . . . [if],

regardless of whether a petitioner actually appeals a denial of a post-conviction

application, the limitations period is tolled during the period in which the
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petitioner could have sought an appeal under state law.”). Moreover, the

Serrano decision was not reached solely under Tenth Circuit precedent, but also

depended on an interpretation of New Mexico law and the New Mexico Rules of

Appellate Procedure, see Serrano, 383 F.3d at 1187, neither of which was raised in

this context before the district court in 2000. For all these reasons, we are unable

to agree with Mr. Omar-Muhammad that the district court’s interpretation in 2000

of an (uncontested) aspect of the AEDPA limitations period was unreasonable at

the time, let alone contrary to established Tenth Circuit law. 

* * *

As did the district court, we find that we are precluded from affording Mr.

Omar-Muhammad the relief he seeks by virtue of the Supreme Court’s decision in

Gonzalez. For that reason, we deny his application for a COA and dismiss this

appeal. 

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge