* This order and judgment is not binding precedent, e xcept under the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

### JUL 13 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ALAN DAVID SWENDRA,

Petitioner-Appellant,

v. RICK SOARES; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondent-Appellee. No. 99-1261 (D.C. No. 98-Z-2652) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY , HENRY , 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-

Petitioner seeks review of an order of the districtcourt dismissing as untimely his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 1291. Leave t o proceed in forma pauperis is granted. Because petitioner has failed to make a s ubstantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), we deny his request for certificate of appealability and dismiss the appeal

. The issue before us is whether the habeas petition filed in district court on November 25, 1998, was timely in view of the req uirement of 28 U.S.C. § 2244(d)(1)(A) that the petition be filed within o ne year of the date the state court judgment “became final by the conclusion of d irect review or the expiration of the time for seeking such review,” as extended b y the time during which a properly filed state post-conviction action is pending. See id. § 2244(d)(2); Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998). Petitioner’s criminal conviction became final in 19 93 following the completion of direct appeal proceedings in state co urt. He filed an application for post-conviction relief under Colo. R. Crim. P. 35(c) in January of 1994. For a variety of reasons not relevant to our dispos ition, this motion remained pending for quite some time and spawned a premature habeas action filed in federal court. See Swendra v. Beida , No. 97-1368, 1998 WL 199656, at **11 Although this motion is not in the record before us , we understand it was an

attempt to “transfer” the state post-conviction pro ceedings to federal court (where his federal habeas petition was then pending) becau se of the state court’s delay in deciding the matter. -3- (10th Cir. Apr. 24, 1998) (dismissing petition for failure to exhaust state court remedies) ( Swendra I ). On April 24, 1997, the state trial court held a hearing on petitioner’s post-conviction motion. Petitioner, who was procee ding pro se but with advisory counsel, tendered to the court a “Motion for Court to Determine Proper Jurisdiction, Bounding State Court Proceedings Purs uant to Crim. P. Rule 35(c)(2)(3) to the Federal Court.” 1 The state court denied the motion and offered to set the Rule 35(c) motion for a hearing, which p etitioner refused. The court determined it lacked jurisdiction to bind the matte r over to federal court and further found that petitioner had waived his right to further pursue his state post-conviction remedy. Although petitioner object ed, he would not commit to either withdrawing the motion or pursuing it by setting the matter for hearing. By minute order, the court then closed the case. Appellee’s Brief, App., at 1. Under Colorado Appellate Rule 4(b)(1), petitioner h ad forty-five days in which to appeal the state court’s order. Instead, he filed a “Motion for Free Transcript and Written Order of April 24, 1997, Rul ing.” R. Doc. 6, App. A, which the state court granted by form order enteredMay 15, 1997. R. Doc. 6,2 Under Colorado Appellate Rule 3(g)(7) it appears th at a copy of the minute

order would have sufficed as “a copy of the judgment or order being appealed.”

3 Under Colorado Appellate Rule 4(b)(1), the appellat e court can, on a showing of excusable neglect, extend the time to fi le a notice of appeal for thirty days with or without motion and notice and before o r after the time for appealing has expired. -4- App. B. According to petitioner, the court sent hi m the transcript but did not send a written order. Petitioner did not appeal the Apr il 24 order to the Colorado Court of Appeals. 2He also did not file a request for an extension o f time in which to appeal. 3 In dismissing this action, the district court determined that the state post-conviction motion was no longer pending after April 24, 1997, the point at which “‘Swendra’s post-conviction motion in Arapaho e County had been denied and the case closed.’” R. Doc. 9 at 6 (quoting Swendra I , 1998 WL 199656, at **1). The federal habeas petition was filed app roximately nineteen months later, well beyond the one-year limitation period o f § 2244(d). Petitioner was present at the state court hearing o n April 24, 1997, when he was advised he had waived his right to further purs ue state post-conviction relief by adamantly refusing to go forward with a hearing. He had forty-five days to appeal that decision in order to continue the tolli ng provision of § 2244(d)(2). Having elected not to further pursue state appellat e remedies, he was subject to the limitations period of § 2244(d)(1)(A).-5-

We therefore conclude the district court correctly dismissed the petition as time-barred. Accordingly, the certificate of ap pealability is DENIED, and the appeal is DISMISSED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge