Solis v. Everett, (10th Cir. 2002)

Text

---

UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

ANTONIO MUELA SOLIS,

Petitioner - Appellant,

v.

VANCE EVERETT, Warden,

Wyoming State Penitentiary; HOKE

MACMILLAN, Wyoming State

Attorney General,

Respondents - Appellees.

No. 01-8061

(No. 00-CV-193-B)

(D. Wyoming)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before EBEL,
name="9">KELLY, and LUCERO, Circuit

Judges.

Petitioner Antonio Muela Solis, a Wyoming state prisoner, seeks a

certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c) to challenge

the district court's dismissal of his petition for a writ of habeas corpus as time-barred under 28 U.S.C. 2244. We deny a COA and dismiss.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), prisoners generally have one year from the date on which their

convictions become final to petition for federal habeas corpus relief. 28 U.S.C. § 2244(d)(1). A conviction becomes final "by the conclusion of direct review or

the expiration of the time for seeking such review." § 2244(d)(1)(A).

Alternatively, the AEDPA limitation period may run from "the date on which the

factual predicate of the claim or claims presented could have been discovered

through the exercise of due diligence." § 2244(d)(1)(D). AEDPA also provides

that "[t]he time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or

claim is pending shall not be counted toward any period of limitation under this

subsection." § 2244(d)(2).

We agree with Solis that the "timeliness of [his] petition for writ of habeas

corpus depends on whether the limitations period was tolled . . . while he sought

certiorari in the United States Supreme Court from the Wyoming [state] court's

judgment on his application for state post-conviction relief." (Appellant's Br. at

11.) In Rhine v. Boone, 182 F.3d 1153 (10th Cir. 1999), we held that the

AEDPA limitation period is "tolled only while petitioner was seeking state court

review of his post-conviction application." Id. at 1155 (emphasis added). "State

court review" does not include a petition for a writ of certiorari to the United

States Supreme Court. Id. at 1156. As a result, Solis's claim that the district

court "erred when it concluded that the statute of limitations was not tolled

during the time that [he] sought certiorari review from the United States Supreme

Court from the state court decision on his post-conviction petition" fails.

(Appellant's Br. at 12.)

Solis himself acknowledges the applicability of Rhine's holding to his

case, but argues that Rhine was incorrectly decided. That argument presents but

a faint hope; we are bound by this Circuit's prior holding in Rhine absent en banc

reconsideration by this Court or a superceding decision by the Supreme Court,

neither of which has occurred.

Solis's application for a COA is DENIED, and the matter is

DISMISSED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. The case is unanimously ordered submitted

without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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.

---