PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CRAIG STEVEN HOWARD,

Petitioner-Appellee,
v.	No. 05-2346
ROBERT ULIBARRI , Warden, Southern New Mexico Correctional Facility; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CIV -04-1415 MCA/ KBM )

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

Madeline S. Cohen, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the brief), Denver, Colorado, for Petitioner-
Appellee.

Before MURPHY, SEYMOUR, and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.

Following his conviction in 1999 for several offenses under New Mexico state law, Craig Howard received a sixteen-year prison sentence. After seeking state post-conviction relief, Mr. Howard sought a writ of habeas corpus pursuant to 28 U.S.C. 2254. The district court found Mr. Howard's petition timely, holding that his motions for modification of sentence under New Mexico Rule of Criminal Procedure 5-801(B) tolled the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. 2244(d). The State appeals this ruling, but because we find our decision in Robinson v. Golder, 443 F.3d 718 (10th Cir. 2006), controlling, we affirm.1

I. Background

In 1999, Mr. 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 Mr. 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 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 The magistrate judge relied on this Court's unpublished decision in Truelove v. Smith, 9 Fed.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 Mexico'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, 272 F.3d 234 (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 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." Id. 2244(d)(2).

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, Mr. Howard's habeas petition was timely. Thus, the sole issue before us is whether a New Mexico Rule 5-801(B) motion for modification of sentence tolls the statute of limitations.

In Truelove, we held that a Rule 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 West Virginia Criminal Rule of Procedure 35(b) does not toll the AEDPA statute of limitations for filing a habeas petition. Walkowiak, 272 F.3d at 239. At the time the State filed its appeal, this Court had not issued a precedential opinion addressing the issue, and the State 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, 443 F. 3d 718 (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)." Id. at 721. Mr. Howard contends that "Colorado Rule 35(b) is substantively identical to New Mexico Rule 5-801(B)," and that we should therefore apply the holding from Robinson to his case. (Appellee's Answer Br. p. 10.) We 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) would "raise questions of comity," because it appears that Colorado retains jurisdiction over the case during the pendency of such motions. Robinson, 443 F.3d at 721 (internal quotation marks omitted). The same considerations apply with equal force to motions to reduce sentence under New Mexico Rule 5-801(B).

The State contends that there are "significant differences" between Colorado Rule 35 and New Mexico Rule 5-801. Appellant's Reply Br. 3. In particular, the State points out that Colorado's Rule 35 is entitled "Postconviction Remedies" whereas New Mexico's Rule 5-801 is entitled "Modification 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
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 Mexico 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 Colorado Rule 35(b) motion is materially indistinguishable from a New Mexico 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 Mr. 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 Mexico Rule of Criminal Procedure 5-801(B) tolls the one-year limitation period in 28 U.S.C. 2244(d)(1).

The judgment of the United States District Court for the District of New Mexico is AFFIRMED.