                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           May 4, 2006
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-1495
          v.                                           (D. Colorado)
 GARY deWILLIAMS,                                 (D.C. No. 88-CR-64-Z)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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       This order and judgment is not binding precedent, except under the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.
      Gary deWilliams appeals the district court’s denial of his motion under Fed.

R. Crim. P. 35(a) to correct his sentence, which was imposed over seventeen years

ago. For the reasons set forth below, we affirm.

      Mr. deWilliams was sentenced on August 3, 1988, to twenty-five years’

imprisonment following his plea of guilty to one count of bank robbery, in

violation of 18 U.S.C. § 2113(a) and (d), and one count of making a false

statement, in violation of 18 U.S.C. § 1001. According to Mr. deWilliams, the

offenses occurred on January 15, 1988. 1 On August 25, 1988, the district court

issued a clarification that Mr. deWilliams’ sentence had been imposed under the

law that preexisted the United States Sentencing Commission’s promulgation of

sentencing guidelines. The court’s ruling was based on its determination that the

sentencing guidelines were unconstitutional. However, in January 1989, the

Supreme Court issued its opinion in Mistretta v. United States, 488 U.S. 361

(1989), holding the guidelines constitutional.

      Nearly seventeen years later, on August 8, 2005, Mr. deWilliams filed a

motion pursuant to 28 U.S.C. § 2255, seeking to be resentenced under the

sentencing guidelines based on the Court’s ruling in Mistretta. The district court

denied the motion, reasoning it was barred by the one-year time limit set forth in




      1
          The record does not otherwise indicate the date of the offense.

                                           -2-
§ 2255. 2 Mr. deWilliams also filed a petition for writ of coram nobis, which the

court also denied as an attempt to circumvent the time limitation of § 2255.

      Mr. deWilliams then filed a pro se “Motion to Correct an[] Illegal or

Unauthorized Sentence Pursuant [to] Federal Rules of Criminal Procedure, Rule

35(a) 1986.” R. Vol. I, tab 19. The district court indicated that this motion again

“asserts the same claims that [deWilliams] raised in the § 2255 Motion and in the

coram nobis Motion.” Order at 2, id., tab 22. The court instructed

Mr. deWilliams “that he may not avoid the time bar under § 2255 simply by

styling a motion as something else.” Id. Nevertheless, the court proceeded to

analyze Mr. deWilliams’ motion under Rule 35(a). The court ruled that Rule

35(a) did not afford Mr. deWilliams an avenue for seeking relief and thus denied

his Rule 35(a) motion. In the same order, the court also denied Mr. deWilliams’

“Motion to Proceed in Forma Pauperis and Affidavit in Support of Motion” as

moot, and denied Mr. deWilliams’ “Motion for Appointment of Counsel Pursuant

[to] 18 U.S.C. § 3006A(a)(1)(H), (I); 2.” Id. at 3. Mr. deWilliams appealed the

order setting forth these rulings. 3

      2
        The one-year time limit was introduced in 1996 as part of the
Antiterrorism and Effective Death Penalty Act. Pub. L. No. 104-132, § 105, 110
Stat. 1214, 1220 (1996).
      3
        Mr. deWilliams had previously sought to appeal the district court’s ruling
on his § 2255 motion. The district court denied deWilliams’ request for a
certificate of appealability pursuant to 28 U.S.C. § 2253(c). We note that the
                                                                      (continued...)

                                        -3-
      As the district court observed, courts must liberally construe pro se

litigants’ pleadings. United States v. Ceballos-Martinez, 387 F.3d 1140, 1145

(10th Cir. 2004) (citing White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996)).

Here, however, even the most liberal construction of Mr. deWilliams’ claims is

unavailing because Fed. R. Crim. P. 35(a) does not provide an appropriate vehicle

for his claim. 4 Prior to 2002, the version of Rule 35(a) applicable to post-

November 1, 1987, offenses “authorize[d] a district court to correct an illegal

sentence on remand from a court of appeals.” United States v. Blackwell, 81 F.3d

945, 948 (10th Cir. 1996). We have held that that version of Rule 35(a) “does not

      3
        (...continued)
government, in a letter filed with this court, refers to that denial as relevant to
Mr. deWilliams’ current appeal and the government’s corresponding refusal to
file a brief. However, a certificate of appealability is only required for appeals
from state court habeas proceedings and § 2255 proceedings. 28 U.S.C.
§ 2253(c)(1); see United States v. Valadez-Camarena, 402 F.3d 1259, 1259 n.1
(10th Cir. 2005). The district court made clear that this appeal “pertain[s] to
[deWilliams’] rule 35(a) motion and not [his] 28 U.S.C. § 2255 motion,” even
though it had earlier indicated that the arguments raised in the two motions were
the same. R. Vol. I, tab 29.
        We further note that, after filing a notice of appeal of the court’s ruling on
his Rule 35(a) motion, Mr. deWilliams filed a “Motion and Affidavit for Leave
to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R. App. 24” with the
district court. If granted, this would have allowed Mr. deWilliams to proceed on
appeal in forma pauperis. However, the district court denied this motion,
concluding his appeal “[wa]s not taken in good faith.” Order at 1, R. Vol. I, tab
31.
      4
        Because Mr. deWilliams has explicitly disavowed the possibility that he
intended, through his Rule 35(a) motion, to file a second or subsequent habeas
petition, and insists instead that he intended to file a “direct, rather than a
collateral, attack,” Motion at 2, R. Vol. I, tab 19, we address his claim as such.

                                          -4-
apply [where] the case was not on remand to the district court” but was instead

before the court based on a defendant’s direct motion for resentencing. Id. Here,

Mr. deWilliams did not file an appeal of his sentence with this court pursuant to

18 U.S.C. § 3742(a), and the time for doing so has long passed. See Fed. R. App.

P. 4(b) (indicating time limit for such appeals is generally within ten days of

sentencing); United States v. Swenson, 289 F.3d 676, 676 n.2 (10th Cir. 2002).

Moreover, in 2002, the former subsection (a) of Rule 35 was deleted, and the

then-existing subsection (c) became the current subsection (a). The current

subsection (a) allows a district court to “correct a sentence that resulted from

arithmetical, technical, or other clear error” within sevens days after sentencing.

Fed. R. Crim. P. 35(a). Again, the time for any such action has expired.

         Ironically, it seems that Mr. deWilliams is relying on the version of Rule

35(a) that applies to offenses committed before November 1, 1987, which allows

a court to “correct an illegal sentence at any time.” See United States v. Garcia,

879 F.2d 803, 804 (10th Cir. 1989); United States v. Vigil, 818 F.2d 738, 739

(10th Cir. 1987). Yet his argument on the merits, that he should have been

sentenced under the guidelines, depends on his assertion that his offense occurred

after November 1, 1987. United States v. Roederer, 11 F.3d 973, 976 (10th Cir.

1993).




                                           -5-
      Because, under any possible construction, Mr. deWilliams’ Rule 35(a)

motion cannot prevail, the district court’s order denying that motion and

Mr. deWilliams’ other related motions is AFFIRMED. Mr. deWilliams’ motion to

proceed in this appeal without prepayment of fees is GRANTED.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




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