F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                     PUBLISH
                                                                      August 9, 2006
                   UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 C RA IG STEV EN H O WA RD ,

              Petitioner-Appellee,
       v.                                               No. 05-2346
 ROBERT ULIBARRI, W arden,
 Southern New M exico Correctional
 Facility; A TTO RN EY G EN ER AL
 FO R TH E STA TE O F N EW M EXICO,

              Respondents-Appellants.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                  FOR T HE D ISTRICT OF NEW M EXICO
                    (D.C. NO . CIV-04-1415 M CA/KBM )


Joel Jacobsen, Assistant Attorney General (Patricia A. M adrid, New M exico
Attorney General, with him on the briefs), Albuquerque, New M exico, for
Respondent-Appellant.

M adeline S. Cohen, Assistant Federal Public Defender (Raymond P. M oore,
Federal Public D efender, with her on the brief), Denver, Colorado, for Petitioner-
Appellee.


Before M URPH Y, SEYM O UR, and M cCO NNELL, Circuit Judges.


M cCO NNELL, Circuit Judge.
      Following his conviction in 1999 for several offenses under New M exico

state law, Craig Howard received a sixteen-year prison sentence. After seeking

state post-conviction relief, M r. Howard sought a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. The district court found M r. Howard’s petition timely,

holding that his motions for modification of sentence under New M exico Rule of

Criminal Procedure 5-801(B) tolled the one-year statute of limitations under the

Antiterrorism and Effective Death Penalty Act of 1996 (A EDPA). See 28 U.S.C.

§ 2244(d). The State appeals this ruling, but because we find our decision in

Robinson v. Golder, 

(10th Cir. 2006), controlling, we affirm. 1

                                    I. Background

      In 1999, M r. Howard was convicted of multiple counts as an accessory to

fraudulent use of a credit card and forgery, and conspiracy to commit the same.

He was sentenced to sixteen years in prison and sought state post-conviction

relief, which was denied at all levels, with one minor exception. 2

      After M r. Howard’s state petitions were denied, he sought a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. The State urged the federal magistrate


      1
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
      2
        The New Mexico Court of Appeals affirmed Mr. Howard’s convictions on direct
appeal on January 10, 2002. However, it remanded for correction of a clerical error in
the judgment, thereby reducing the judgment and sentence on one of the counts from a
third-degree felony to a fourth-degree felony.

                                           -2-
judge to find the motion time-barred by AEDPA’s one-year statute of limitations.

The magistrate judge rejected the State’s position and recommended that the

district court find the federal habeas petition timely. The magistrate judge relied

on this Court’s unpublished decision in Truelove v. Smith, 9 Fed. Appx. 798, 802

(10th Cir. 2001), which held that a motion for modification of sentence brought

under New M exico’s Rule 5-801(B) tolls the AEDPA statute of limitations. The

State filed an objection before the district court, pointing out that the Truelove

decision does not have precedential weight and arguing that its analysis should be

rejected in favor of the contrary reasoning of the Fourth Circuit’s decision in

Walkowiak v. Haines, 

(4th Cir. 2001). The district court disagreed

that Truelove had been wrongly decided, and adopted the magistrate judge’s

recommendation. However, the district court recognized that there was

“substantial ground for difference of opinion and that an immediate appeal . . .

[might] materially advance the ultimate termination of the litigation.” 28 U.S.C.

§ 1292(b). The State filed a petition requesting permission to bring an

interlocutory appeal under § 1292(b) and we granted that petition on November 4,

2005.

                                    II. Discussion

        AEDPA provides that a one-year “period of limitation shall apply to an

application for a writ of habeas corpus . . . run[ning] from . . . the date on which

the judgment became final by the conclusion of direct review or the expiration of

                                          -3-
the time for seeking such review .” 28 U.S.C. § 2244(d)(1). However, the statute

of limitations is tolled while “a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment or

claim is pending.” 

       On appeal, the State argues that a motion for modification of sentence

under Rule 5-801(B) does not constitute “post-conviction or other collateral

review ,” and thus should not toll the AEDPA statute of limitations. The State

concedes, however, that if a Rule 5-801(B) motion does toll the statute of

limitations, M r. Howard’s habeas petition was timely. Thus, the sole issue before

us is whether a New M exico Rule 5-801(B) motion for modification of sentence

tolls the statute of limitations.

       In Truelove, we held that a R ule 5-801(B) motion tolls the AEDPA statute

of limitations after finding “no authority limiting post conviction or other

collateral review of a judgment or claim under § 2244(d)(2) to only challenges of

a conviction, and not a sentence.” Truelove, 9 Fed. Appx. at 802 (internal

quotation marks omitted). By contrast, in Walkowiak, the Fourth Circuit held that

a motion for reduction of sentence under W est Virginia Criminal Rule of

Procedure 35(b) does not toll the AEDPA statute of limitations for filing a habeas

petition. 

. At the time the State filed its appeal, this

Court had not issued a precedential opinion addressing the issue, and the State




                                          -4-
urged the Court to follow the Fourth Circuit’s lead rather than that of the

unpublished decision in Truelove.

      After the State’s appeal was filed, this Court decided Robinson v. Golder,

(10th Cir. 2006). In Robinson we held that “a properly filed

Colorado Rule of Criminal Procedure 35(b) motion tolls the one-year limitation

period in § 2244(d)(1).” 

M r. Howard contends that “C olorado Rule

35(b) is substantively identical to New M exico Rule 5-801(B),” and that we

should therefore apply the holding from Robinson to his case. (Appellee’s

Answer Br. p. 10.) W e agree.

      Robinson held that motions for “post-conviction or other collateral review ”

under § 2244(d)(2) are not limited to constitutional challenges to the defendant’s

conviction, but extend to challenges to the defendant’s sentence. The Court also

observed that to interpret § 2244(d)(2) as excluding motions to reduce sentence

under Colorado Rule 35(b) w ould “raise questions of comity,” because it appears

that Colorado retains jurisdiction over the case during the pendency of such

motions. 

(internal quotation marks omitted). The

same considerations apply with equal force to motions to reduce sentence under

New M exico Rule 5-801(B).

      The State contends that there are “significant differences” between

Colorado Rule 35 and New M exico R ule 5-801. Appellant’s Reply Br. 3. In

particular, the State points out that Colorado’s Rule 35 is entitled “Postconviction

                                         -5-
Remedies” whereas New M exico’s Rule 5-801 is entitled “M odification of

Sentence,” and that sections (A) and (C) in each rule vary substantially from one

another. As to the first point, we cannot think a mere difference in the

nomenclature used in the statutory headings can produce a different interpretation

for purposes of federal law. As to the second point, the relevant sections of the

two states’ rules – section (B) in both cases – are in all material respects

identical. 3 Both permit motions to “reduce a sentence” within a certain time after


      3
          For purposes of comparison, we set forth the text of both states’ rules:

NEW MEXICO RULE OF CRIMINAL PROCEDURE 5-801:
MODIFICATION OF SENTENCE
A. Correction of Sentence. The court may correct an illegal sentence at any time
pursuant to Rule 5-802 and may correct a sentence imposed in an illegal manner within
the time provided by this rule for the reduction of sentence.

B. Modification of Sentence. A motion to reduce a sentence may be filed within ninety
(90) days after the sentence is imposed, or within ninety (90) days after receipt by the
court of a mandate issued upon affirmance of the judgment or dismissal of the appeal,
or within ninety (90) days after entry of any order or judgment of the appellate court
denying review of, or having the effect of upholding, a judgment of conviction. A
motion to reduce a sentence may also be filed upon revocation of probation as provided
by law. Changing a sentence from a sentence of incarceration to a sentence of probation
shall constitute a permissible reduction of sentence under this paragraph. The court
shall determine the motion within ninety (90) days after the date it is filed or the
motion is deemed to be denied.

C. Mandatory Sentence. Paragraph B of this rule does not apply to the death penalty
or a mandatory sentence.


COLORADO RULE OF CRIMINAL PROCEDURE 35:
POSTCONVICTION REMEDIES

                                                                               (continued...)

                                              -6-
       3
        (...continued)
(a) Correction of Illegal Sentence. The court may correct a sentence that was not
authorized by law or that was imposed without jurisdiction at any time and may correct
a sentence imposed in an illegal manner within the time provided herein for the
reduction of sentence.

(b) Reduction of Sentence. The court may reduce the sentence provided that a motion
for reduction of sentence is filed (1) within 120 days after the sentence is imposed, or
(2) within 120 days after receipt by the court of a remittitur issued upon affirmance of
the judgment or sentence or dismissal of the appeal, or (3) within 120 days after entry
of any order or judgment of the appellate court denying review or having the effect of
upholding a judgment of conviction or sentence. The court may, after considering the
motion and supporting documents, if any, deny the motion without a hearing. The court
may reduce a sentence on its own initiative within any of the above periods of time.

(c) Other Remedies.

(1) If, prior to filing for relief pursuant to this paragraph (1), a person has sought
appeal of a conviction within the time prescribed therefor and if judgment on that
conviction has not then been affirmed upon appeal, that person may file an application
for postconviction review upon the ground that there has been a significant change in
the law, applied to the applicant's conviction or sentence, allowing in the interests of
justice retroactive application of the changed legal standard.

(2) Notwithstanding the fact that no review of a conviction of crime was sought by
appeal within the time prescribed therefor, or that a judgment of conviction was
affirmed upon appeal, every person convicted of a crime is entitled as a matter of right
to make application for postconviction review upon the grounds hereinafter set forth.
Such an application for postconviction review must, in good faith, allege one or more of
the following grounds to justify a hearing thereon:
(I) That the conviction was obtained or sentence imposed in violation of the
Constitution or laws of the United States or the constitution or laws of this state;
(II) That the applicant was convicted under a statute that is in violation of the
Constitution of the United States or the constitution of this state, or that the conduct for
which the applicant was prosecuted is constitutionally protected;
(III) That the court rendering judgment was without jurisdiction over the person of the
applicant or the subject matter;
(IV) Repealed eff. July 1, 2004.
                                                                               (continued...)

                                             -7-
sentence is imposed. If a motion to reduce sentence under Colorado Rule 35(b) is

a motion for “post-conviction or other collateral review,” as Robinson held, the

same has to be true of a motion under New M exico Rule 5-801(B). To be sure,

other portions of these rules contain significant differences, but the State offers

no persuasive reason why those differences should have any effect on our

interpretation of sections (B).

       Because we find that a C olorado Rule 35(b) motion is materially

indistinguishable from a New M exico Rule 5-801(B) motion, we are not at liberty

to consider the State’s challenges to our reasoning in Robinson or to determine

whether each point of reasoning in that decision applies directly to M r. Howard’s

case. Rather, because the central holding in Robinson is directly on point, we are

bound to follow our decision in that case. Accordingly, we hold that a properly

filed motion for modification of sentence under New M exico Rule of Criminal

Procedure 5-801(B) tolls the one-year limitation period in 28 U.S.C. § 2244(d)(1).




       3
           (...continued)
(V) That there exists evidence of material facts, not theretofore presented and heard,
which, by the exercise of reasonable diligence, could not have been known to or learned
by the defendant or his attorney prior to the submission of the issues to the court or
jury, and which requires vacation of the conviction or sentence in the interest of justice;
(VI) Any grounds otherwise properly the basis for collateral attack upon a criminal
judgment; or
(VII) That the sentence imposed has been fully served or that there has been unlawful
revocation of parole, probation, or conditional release. . . . .


                                            -8-
     The judgment of the United States District Court for the District of New

M exico is AFFIRM ED.




                                       -9-