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TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
LEE UECKER,
Petitioner - Appellant,
v.
ANTHONY ROMERO, Warden;
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,
No. 08-2118
(D.C. No. CIV-07-01041-JCH-RLP)
(D.N.M.)
Respondents-Appellees.
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
2244(d)(2), Mr. Uecker did not file his first habeas petition in state court until
April 25, 2005, almost four years after his conviction became final and already
well outside the one-year statutory period.
AEDPA also provides that the one-year limitations 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 if such date is later
than the date on which the conviction became final. 28 U.S.C. 2244(d)(1)(D).
Construing his filings liberally, Mr. Uecker could be understood to invoke this
statutory provision when he contends that he did not receive proper discovery for
his case until after he learned he could file a habeas corpus claim. However, Mr.
Uecker does not point us to any facts that he could not have discovered at the
time of his conviction that now serve as the basis for a meritorious habeas corpus
claim. We are, thus, in no position to say that the district courts disposition of
Mr. Ueckers Section 2254 petition as time-barred is debatable or incorrect; his
request for a COA is therefore denied and this appeal is dismissed.
Neil M. Gorsuch
Circuit Judge
-3-