UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVID B. SIMMONS,

Petitioner-Appellant,

v.

L. E. BRUCE, Warden, Hutchinson Correctional Facility; ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents-Appellees.

No. 05-3379

(D.C. No. 03-CV-3302-SAC)

(D. Kan.)

ORDER AND JUDGMENT*

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.

David B. Simmons, a Kansas state prisoner proceeding pro se, appeals the district court's dismissal of his 28 U.S.C. § 2254 petition for habeas relief. The district court determined that Mr. Simmons failed to file his habeas petition within the applicable one-year statute of limitations, 28 U.S.C. § 2244(d)(1), and alternatively, that Mr. Simmons's claims were procedurally defaulted. Thereafter, the district court declined to issue Mr. Simmons a certificate of appealability (COA), but it granted him leave to proceed on appeal in forma pauperis. Mr. Simmons then filed in this court an application for a COA, asserting that his habeas petition was not time-barred and his claims were not procedurally defaulted. This court granted Mr. Simmons a COA to consider these two issues. See 28 U.S.C. § 2253(c).

Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a). We review de novo the district court's dismissal of a federal habeas petition as time-barred. Serrano v. Williams, 383 F.3d 1181, 1184 (10th Cir. 2004). We likewise review de novo the district court's dismissal of a federal habeas petition based on procedural default. Anderson v. Attorney Gen. of Kan., 342 F.3d 1140, 1143 (10th Cir. 2003). Because Mr. Simmons is pro se, we construe his pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).

In a December 12, 2005, motion to supplement his opening brief, Mr. Simmons asserts for the first time on appeal that the district court erred by not tolling the applicable one-year statute of limitations during the twenty-day period in which he could have filed a motion for rehearing from the Kansas Supreme Court's June 1, 2001, decision affirming the denial of a post-conviction motion. Serrano, 383 F.3d at 1185 (holding time allotted by the state for filing motion for rehearing tolls limitation period); Kan. Sup. Ct. R. 7.06 ("A motion for rehearing . . . may be served and filed within twenty (20) days of the date of decision."). Mr. Simmons never made this argument in the district court. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993) ("[I]ssues not passed upon below will not be considered on appeal); see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (stating that § 2244(d) is not jurisdictional). But even if he had made the argument, we would still hold–having carefully considered the briefs, the record, and the applicable law–that he procedurally defaulted his claims. We therefore AFFIRM the judgment of the district court for substantially the same reasons stated in its order dated September 27, 2005. R. Doc. 29. Mr. Simmons's December 12, 2005, motion is GRANTED. All other outstanding motions are DENIED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge