Diaz v. Galetka

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 27, 1998
• Docket: 97-4158
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 27 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

JOSE DIAZ,

Petitioner-Appellant,

v. No. 97-4158 (D.C. No. 97-CV-357) HANK GALETKA, Warden, (D. Utah) Utah State Prison,

Respondent-Appellee.

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. On May 7, 1997, petitioner filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 seeking relief from a 1992 Utah state court

conviction. The magistrate judge to whom the federal petition was referred

recommended that it be dismissed for failure to comply with the one-year

limitation period provided in 28 U.S.C. § 2244(d)(1), which was enacted as part

of the Antiterrorism and Effective Death Penalty Act of 1996. Petitioner filed

objections to the recommendation, raising several constitutional challenges to the

application of the limitations period. Petitioner also argued that commencement

of the limitations period should be delayed pursuant to § 2244(d)(1)(B) because

an unconstitutional state-created impediment prevented him from filing his habeas

petition. The district court rejected petitioner’s constitutional challenges to the

statute of limitations, but did not directly address his argument about the delayed

commencement of the limitations period. The court dismissed the action as

untimely.

Before petitioner can proceed on appeal, he must obtain a certificate of

appealability from this court, which requires “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Our review of this matter was

made more difficult by the district court’s failure to address petitioner’s argument

about the commencement date of the limitations period under § 2244(d)(1)(B).

Nonetheless, our thorough review of the record and petitioner’s appellate brief

-2- leads us to conclude that petitioner has not shown the district court’s disposition

of his habeas petition to be debatable, reasonably subject to a different outcome

on appeal, or otherwise deserving of further proceedings. See Gallagher v.

Hannigan , 24 F.3d 68, 68 (10th Cir. 1994) (discussing how to make substantial

showing of denial of constitutional right).

Therefore, a certificate of appealability is DENIED, and the appeal is

DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge

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