                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAY 18 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA

          Respondent - Appellee,
                                                           No. 99-8103
 v.                                                   (D.C. No. 98-CV-188)
                                                      (District of Wyoming)
 DAVID L. TOBLER

          Petitioner - Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      David L. Tobler, appearing pro se, seeks a Certificate of Appealability

(“COA”) pursuant to 28 U.S.C. § 2253(c) to appeal the denial of his motion

attacking his sentence pursuant to 28 U.S.C. § 2255. Because we agree with the

district court that his petition is time-barred, we decline to issue a certificate of

appealability. See 28 U.S.C. § 2253(c).



      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      In 1986, Tobler pleaded guilty to aiding and abetting the distribution of

cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and was

sentenced to eight years imprisonment followed by three years of special parole.

On July 27, 1998, he filed a motion to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255 in United States District Court for the District of

Wyoming. That motion was denied on November 8, 1999, and this application for

COA followed.

      On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) became effective, including the provision subjecting § 2255

motions to a one-year statute of limitations:

      A 1-year period of limitation shall apply to a motion under [28 U.S.C.
      § 2255]. The limitation period shall run from the latest of–
                   (1) the date on which the judgment of conviction becomes
            final;
                   (2) the date on which the impediment to making a motion
            created by governmental action in violation of the Constitution or
            laws of the United States is removed, if the movant was prevented
            from making a motion by such governmental action;
                   (3) the date on which the right asserted was initially
            recognized by the Supreme Court, if that right has been newly
            recognized by the Supreme Court and made retroactively applicable
            to cases on collateral review; or
                   (4) the date on which the facts supporting the claim or claims
            presented could have been discovered through the exercise of due
            diligence.

28 U.S.C. § 2255.




                                        -2-
       Because the one-year limitations period for Tobler, whose conviction

became final prior to the effective date of AEDPA, expired on April 24, 1997, see

United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997), Tobler’s July 27,

1998, § 2255 motion was untimely. While § 2255 provides for three situations in

which the limitations period will begin to run after a conviction becomes final,

none apply to Tobler’s proffered justifications. Nor do those justifications

present “extraordinary circumstances” warranting equitable tolling. United States

v. Willis, 202 F.3d 1279, 1281 n.3 (10th Cir. 2000) (citing Miller v. Marr, 141

F.3d 976, 978 (10th Cir. 1998)). First, the argument that he had no notice of

AEDPA’s new limitations period is simply without merit. See Simmonds, 111

F.3d at 746. Second, Tobler’s constitutional challenges are unavailing because

“AEDPA, including its limitations period, is constitutional.”       Ellis v. Martin , No.

98-6450, 1999 WL 1101241, at **3 (10th Cir. Dec. 6, 1999) (citing         Felker v.

Turpin , 518 U.S. 651, 664 (1996);       Miller , 141 F.3d at 978). Third, we discern

neither error on the part of the sentencing court nor ineffective assistance of

counsel under Strickland v. Washington , 466 U.S. 668 (1984), that rises to the

level of “extraordinary circumstances” warranting equitable tolling. Finally,

Tobler’s citations to the doctrines of     audita querela and coram nobis to skirt the

time limit for filing a § 2255 petition are wholly unavailing.




                                             -3-
     The application for a certificate of appealability is DENIED. This matter

is DISMISSED .

     The mandate shall issue forthwith.

                                    ENTERED FOR THE COURT



                                    Carlos F. Lucero
                                    Circuit Judge




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