F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 11 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    STEVEN CLARK COOPER,

                Petitioner-Appellant,

    v.                                                   No. 00-2462
                                                (D.C. No. CIV-00-264 JP/RLP)
    ERASMO BRAVO, Warden,                              (D. New Mexico)
    Guadalupe County Correctional
    Facility; ATTORNEY GENERAL
    FOR THE STATE OF NEW MEXICO,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.



         After examining the briefs and 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 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      This order and judgment is not binding precedent, except under the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.
       Petitioner Steven Clark Cooper, a New Mexico state prisoner appearing

pro se , filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The district court dismissed the petition, concluding it was not filed within the

one-year limitations period set forth in 28 U.S.C. § 2244(d)(1). We granted

Cooper a certificate of appealability (COA) with respect to two issues:

(1) whether the respondent met its burden of demonstrating when Cooper’s

one-year limitations period under § 2244(d) had commenced and expired, and

(2) whether and to what extent the one-year limitations period should be equitably

tolled based on Cooper’s claim that his appointed trial counsel was ineffective for

not filing or properly perfecting his state appeal, and that he did not know for

nearly a year that his direct appeal had been procedurally terminated. We remand

this case to the district court for further proceedings.


                                      I. Background

       In January 1998, Cooper pled guilty to thirty counts of criminal sexual

penetration, all involving his minor daughter. On July 27, 1998, he was sentenced

to thirty-six years’ imprisonment on all of the convictions.   1
                                                                   On August 10, 1998,



1
       Cooper’s state court motion for reconsideration indicates, however, that his
judgment and sentence was entered on August 27, 1998. R. Doc. 10, Ex. E. at 1.
We cannot independently ascertain the date judgment was entered because the
docket sheet from Cooper’s state court criminal proceeding was never made part
of the record.

                                             -2-
Cooper filed a notice of appeal. Cooper contends that he requested his court-

appointed counsel to file an appeal, but his counsel failed to take any actions to

perfect the appeal. It is undisputed that neither Cooper nor his counsel filed a

docketing statement, which must be filed within thirty days of the filing of the

notice of appeal in order to perfect the appeal.   See N. M. R. App. P. 12-208(B).

There is nothing in the record to indicate, however, how or when Cooper’s

attempted appeal was disposed of by the New Mexico Court of Appeals.

       On October 5, 1998, Cooper filed a motion with the trial court for

reconsideration of his sentence, which was dismissed three days later. On

January 27, 1999, he filed an application for post-conviction relief in state court

which was denied on February 25, 1999. He filed a petition for writ of certiorari

appealing the denial to the New Mexico Supreme Court on March 16, 1999, which

was denied on March 30, 1999. On February 23, 2000, Cooper filed his federal

habeas petition.


                                        II. Analysis

                            A. One-Year Limitations Period

       Because Cooper filed his federal habeas petition after April 24, 1996, his

petition is governed by the provisions of the Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”).       See Hooks v. Ward , 

, 1213 (10th Cir.

1999). The district court dismissed Cooper’s petition on the ground that it was

                                             -3-
filed outside of the one-year period of limitations set forth in § 2244(d). Section

2244(d) provides, in relevant part:

      (1) A 1-year period of limitation shall apply to an application for
      a writ of habeas corpus by a person in custody pursuant to the
      judgment of a State court. The limitation shall run from the latest
      of--

       (A) the date of which the judgment became final by the conclusion
      of direct review or the expiration of the time for seeking such
      review; . . . or

       (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.

This court has held that the limitation period under § 2244(d)(1)(A) commences at

the end of the period in which the prisoner could have sought review of the direct

appeal of his conviction by the United States Supreme Court.      Locke v. Saffle ,

, 1273 (10th Cir. 2001).

      Adopting the magistrate judge’s report and recommendation, the district

court determined that the one-year limitations period began thirty-four days after

Cooper filed his notice of appeal, on the date when the required docketing

statement was not filed in the New Mexico Court of Appeals. The district court

did not explain the basis of this calculation; apparently, it implicitly treated

Cooper’s attempted appeal as a nullity and determined that Cooper’s conviction

became final at the expiration of the time for seeking direct review. The district

court then tolled the one-year limitations period during the period in which

                                          -4-
Cooper’s state habeas petition was pending.      See 28 U.S.C. § 2244(d)(2). With

these allowances, the district court concluded that Cooper’s limitations period

expired three months before he filed his federal habeas petition.

      Cooper contends the district court erred in dismissing his petition as

untimely under § 2244(d)(1). Specifically, he claims the limitations period should

be tolled because he instructed his counsel to file a direct appeal and did not

learn for nearly a year that his direct appeal had not been perfected properly.

We review de novo the district court’s interpretation of 28 U.S.C. § 2244(d).

See United States v. Fillman , 

, 1056 (10th Cir. 1998). The

respondent bears the burden of proving that the AEDPA limitations period has

expired. Cf. Hooks v. Ward , 184 F.3d at 1216-17 (holding that state bears the

burden of proving the adequacy of a state procedural bar to federal habeas

review).

      Under New Mexico law, it is the responsibility of an appellant’s trial

counsel, unless relieved of such obligation by the court, to file a docketing

statement within thirty days of filing a notice of appeal in the New Mexico Court

of Appeals. N. M. R. App. P. 12-208(A) and (B). The New Mexico Court of

Appeals requires a docketing statement in order to perfect an appeal.   Cf. Schmitz

v. Smentowski , 

, 732 (N.M. 1990). The docketing statement must

include a concise and accurate statement of all the material facts and a statement


                                           -5-
of the issues presented by the appeal, including how they arose and how they were

preserved in the trial court. Rule 12-208(D). The court may grant an extension of

time within which to file the docketing statement upon a showing of good cause.

Johnson v. School Bd. of Albuquerque Pub. Sch. Sys.      , 

, 918

(N.M. Ct. App. 1991).

       As noted, it is undisputed that Cooper’s counsel failed to file the required

docketing statement. No records from the New Mexico Court of Appeals relating

to Cooper’s attempted direct appeal were provided to the district court.

Therefore, there is no evidence in the record indicating how or when Cooper’s

appeal was ultimately terminated. Although the district court assumed that the

appeal was terminated thirty-four days after the notice of appeal was filed, it is

also possible that some longer period of time elapsed after the docketing

statement deadline passed before the appellate court dismissed or otherwise

disposed of Cooper’s appeal. Nor can we accept the district court’s assumption

that Cooper’s appeal was never docketed or was otherwise a nullity. The appeal

might, instead, have been dismissed by the New Mexico Court of Appeals, in

which case Cooper’s one-year limitation period would not have begun to run until

the time for filing a certoriari petition expired.   See Locke , 237 F.3d at 1273.

In the absence of any record, we simply do not know when or how Cooper’s state

appeal was terminated. The district court lacked any evidentiary support for its


                                               -6-
conclusion that Cooper’s conviction became final thirty-four days after he filed

his notice of appeal. On this basis alone, a remand is necessary for a factual

determination in the first instance of how and when the New Mexico Court of

Appeals disposed of Copper’s direct appeal.          See Cowles v. Dow Keith Oil & Gas,

Inc. , 

, 511 (10th Cir. 1985) (holding that a finding of fact is clearly

erroneous if it is without factual support in the record).

       Moreover, under § 2244(d)(1)(D), Cooper’s one-year limitations period

may not even have begun until      after he learned that his attorney had failed to file

a direct appeal, at least with respect to his ineffective assistance of counsel claim.

Cooper alleged in his § 2254 habeas petition that his counsel was ineffective

because he failed to follow Cooper’s instructions to file a direct appeal. R. Doc.

1, at 6(f). If that allegation is true, then “the date on which the factual predicate

of [this particular ineffective assistance of counsel claim] could have been

discovered through the exercise of due diligence,” § 2244(d)(1)(D), would be the

day on which Cooper could have reasonably discovered that his counsel failed to

follow his instructions to appeal his guilty plea.      See Powell v. Williams ,

, 1412 (D.N.M. 1997) (concluding that, under § 2244(d)(1)(D),

the limitations period on an ineffective assistance of counsel claim based on the

failure to file a direct appeal began to run “when [the petitioner] discovered or

should have discovered through the exercise of due diligence [that] his attorney


                                              -7-
had failed to file a direct appeal” and rejecting the argument that the statute of

limitations began to run when the petitioner’s judgment and sentence became

final). On remand, the district court should consider the application of

§ 2244(d)(1)(D) to Cooper’s ineffective assistance of counsel claim.


                                 III. Equitable Tolling

      The district court also failed to consider adequately Cooper’s claim that the

limitations period should be equitably tolled. The one-year statute of limitations

may be equitably tolled, although only “when an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by extraordinary

circumstances beyond his control.”     Marsh v. Soares , 

, 1220

(10th Cir. 2000), cert. denied , 

(2001). Cooper has the burden of

demonstrating that equitable tolling should apply.    See Miller v. Marr , 

, 978 (10th Cir. 1998) (refusing to apply equitable tolling because the

petitioner “provided no specificity regarding the alleged lack of access and the

steps he took to diligently pursue his federal claims”).

      Cooper contends that § 2244(d)(1)’s limitations period should be equitably

tolled because he instructed his attorney to file a direct appeal, had a right to

expect his attorney would file the docketing statement and perfect the appeal on

his behalf, and waited for nearly a year before he learned that his state appeal had

not been perfected. His allegation is supported, to some degree, by earlier

                                            -8-
statements in his state pleadings. In his January 1999 state habeas petition,

Cooper informed the court that he had filed a notice of appeal but did not know

the status of his appeal. R. Doc. 10, Ex. G, at 2. He further explained that he

assumed the New Mexico Court of Appeals would notify him when the appeal

was concluded.    

might constitute the type of extraordinary

circumstances warranting the application of equitable tolling.     See Woodward v.

Williams , 

, 1143 (10th Cir. 2001) (holding that “a prisoner’s lack of

knowledge that the state courts have reached a final resolution of his case can

provide grounds for equitable tolling if the prisoner has acted diligently in the

matter”). The respondent counters that the attempted state appeal should have no

effect on § 2244(d)’s one-year limitations period because Cooper waived his right

to any direct appeal by pleading guilty and not reserving any issues for direct

appeal. Under New Mexico law, a voluntary guilty plea, made with full

understanding of the consequences, ordinarily waives a defendant’s right to

appeal on any grounds other than jurisdictional unless a conditional plea

agreement reserves the issue for appeal.     State v. Hodge , 

, 5 (1994).

The limited record before this court does not reveal that Cooper reserved any

issues for appellate review in his plea agreement or plea proceedings.




                                            -9-
      Cooper, however, claims that he did not knowingly or voluntarily enter into

his plea agreement or any implied waiver of appellate rights contained therein.         2



In this regard, we note that neither the plea agreement nor the record of the plea

proceedings make any reference to a waiver of appellate rights,       see R. Doc. 10,

Exs. B and C, and that the judgment and sentence entered by the trial court

expressly states that Cooper was notified of his right to appeal and his right to

have court-appointed counsel pursue that appeal if he was indigent,        

at 6-7. Thus, on the face of the record before us, it is not entirely clear that

Cooper waived his right to appeal.

      Moreover, even if Cooper did enter a knowing, voluntary, unconditional

guilty plea waiving his right to appeal, his counsel would remain obligated under

New Mexico law to file an appeal and related docketing statement if Cooper

wanted to appeal his guilty plea. Though his counsel might have correctly

concluded such an appeal would be frivolous, he would be obligated under

New Mexico law to “advance all points for reversal requested to be advanced by



2
       Respondent asserts that Cooper is not claiming that his guilty plea was
involuntary. Cooper asserted in his state habeas petition that his plea agreement
was not knowingly entered into because his trial counsel did not present viable
alternatives to pleading guilty. R. Doc. 10, Ex. G. at 3. He further alleges in his
§ 2254 petition that his plea was not entered into knowingly and intelligently.
R. Doc. 1, at 6(e). Finally, Cooper states in his federal habeas petition that the
state trial court specifically informed him that he had a right to file an appeal.

                                           -10-
defendant, even if counsel had no confidence in them or if he could not in good

faith support them.”   State v. Boyer , 

, 4 (N.M. Ct. App. 1985) (citing

State v. Franklin , 

(N.M. 1967) and its progeny). Even where

counsel believes an appeal to be frivolous, he remains obligated “to prepare a

docketing statement of sufficient completeness to afford adequate appellate

review.” State v. Talley , 

, 359 (N.M. Ct. App. 1985);   see also

Boyer , 712 P.2d at 4 (requiring counsel, in a case where counsel believes the

requested appeal to be frivolous, to prepare a docketing statement that states the

contentions advanced by a defendant, includes a statement of all facts material to

those contentions, informs the court whether and how the contentions were raised

in the trial court, and informs the court whether the contentions or facts would

appear in the record).

      As noted, Cooper has alleged that he instructed his counsel to file an

appeal. If true, his counsel would have been statutorily and ethically obligated to

file the required docketing statement, in which case Cooper’s direct appeal would

not have been deemed abandoned, as respondent claims it was. If true, the

limitations period of Cooper’s ineffective assistance of counsel claim in his

habeas petition might not begin to run under § 2244(d)(1)(D) until the date when

Cooper discovered, or could have discovered with the exercise of due diligence,

that his counsel did not follow his instructions to appeal his guilty plea. And,


                                         -11-
if true, Cooper could reasonably have believed for a year that his state appeal was

still pending, as he claims, which might justify equitable tolling.

      The district court did not address these allegations. We therefore remand

this case to the district court with instructions to develop the facts further, to

assess their legal significance, and to assess the balance of equities in this case in

the first instance. We suggest no outcome on remand. We hold only that the

present state of the record does not permit an informed decision on when and how

Cooper’s direct appeal was terminated, when § 2244(d)’s limitation period

commenced, and whether equitable tolling is appropriate in this case.

      The district court’s judgment that Mr. Cooper’s habeas petition was

untimely under § 2244(d)(1) is VACATED, and the case is REMANDED with

instructions for further proceedings. Respondent’s motion to supplement the

record is DENIED. The mandate shall issue forthwith.


                                                      Entered for the Court



                                                      Deanell Reece Tacha
                                                      Chief Judge




                                          -12-