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Hampton v. Zavaras, 10th Cir. (2000)
Hampton v. Zavaras, 10th Cir. (2000)
SEP 15 2000
PATRICK FISHER
Clerk
RUSSELL M. HAMPTON,
Petitioner-Appellant,
v.
ARISTEDES ZAVARAS, Executive
Director of Colorado Department of
Corrections,
No. 00-1067
(District of Colorado)
(D.C. No. 98-WM-949)
Respondent-Appellee.
After examining Petitioners 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)(2); 10th Cir. R. 34.1(G).
The court therefore orders the case 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This order and judgment is not binding precedent, except under the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.
*
See
28 U.S.C. 2253(c)(1)(A) (providing that an appeal may not be taken from the
denial of a 2254 habeas petition unless the petitioner first obtains a COA). We
agree with the district court that Hamptons petition is time-barred and, therefore,
decline to issue a COA.
In 1979, Hampton was convicted of robbery and sentenced to an eight-year
term of incarceration. Hamptons conviction was affirmed by this court.
See
United States v. Hampton , 633 F.2d 927 (10th Cir. 1980). Hampton has
completed the sentence imposed for the robbery conviction. In 1984, Hampton
was charged in Colorado state court with one count of sexual assault in the first
degree; he was also charged with being a habitual criminal.
In the petition,
Although Hampton has not filed an application for a COA with this court,
Hamptons notice of appeal constitutes a request for a COA. See Fed. R. Civ. P.
22(b)(2).
1
Hampton originally filed his 2254 petition on April 29, 1998. Although
that petition was dismissed by the district court on June 1, 1998, Hampton was
2
-2-
(holding
that a state prisoner has one year from the effective date of the AEDPA to file a
2254 habeas petition but that the one-year period is tolled by any time spent
pursuing post-conviction relief in state court). Hamptons petition was filed well
after the April 23rd deadline.
Hampton filed a timely objection to the magistrates recommendation
which the district court considered. The district court, however, rejected
Hamptons claims that the 2254 petition is a continuation of issues he presented
allowed to file an amended petition and the district courts order dismissing his
initial petition was vacated.
-3-
Simmonds , 111 F.3d 737, 746 (10th Cir. 1997) ([P]risoners whose convictions
become final on or before April 24, 1996, must file their 2255 motions before
April 24, 1997.).
current term of
See Gamble v. Parsons , 898 F.2d 117, 118 (10th Cir. 1990).
-4-
magistrates recommendation, the district courts order, and the entire record on
appeal, this court concludes that the district courts ultimate conclusion that
Hamptons petition is time barred is not reasonably debatable, subject to a
-5-
and dismiss
his appeal.
Michael R. Murphy
Circuit Judge
-6-