                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 February 1, 2012
                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 11-3299
 v.                                           (D.C. No. 2:00-CR-20056-CM-1)
                                                          (D. Kan.)
 HENRY JOHNSON,

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.



      Henry Johnson II, a federal inmate appearing pro se, seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct his sentence. Johnson v. United

States, No. 00–20056–1–CM, 2011 WL 3880854 (D. Kan. Sept. 2, 2011). After

the district court rejected his motion as time-barred, Mr. Johnson filed an

application to file a second or successive § 2255 motion in this court raising the

same issues. 28 U.S.C. § 2255(h). A panel of this court denied authorization, but

directed the Clerk to treat Mr. Johnson’s application as a misdirected notice of

appeal. In re Johnson, No. 11-3287 (10th Cir. Oct. 7, 2011). Because Mr.
Johnson has not made “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the appeal.

      Mr. Johnson was convicted in 2001 upon a guilty plea of robbery affecting

interstate commerce and aiding and abetting, 18 U.S.C. §§ 1951 and 2, and using

and carrying a firearm during and in relation to a crime of violence and aiding

and abetting, 18 U.S.C. §§ 924(c) and 2. He robbed a Montgomery Ward store in

Kansas City, Kansas, with a shotgun. He does not deny that he committed the

robbery but alleges that “no interstate commerce nexus connection has been

shown to exist.” Aplt. Br. 5. He also claims his sentence was incorrectly

calculated under the guidelines. Id. at 8-10. His interstate-commerce argument

was rejected on direct appeal. United States v. Johnson, 18 Fed. Appx. 765 (10th

Cir. 2001).

      A one-year statute of limitations applies to habeas claims under 28 U.S.C.

§ 2255. For Mr. Johnson this period expired on February 16, 2002, one year from

the date on which the Supreme Court made the judgment “final” by denying his

petition for a writ. 28 U.S.C. § 2255(f)(1). For equitable tolling to apply,

Holland v. Florida, 130 S. Ct. 2549 (2010), petitioner must show (1) that he has

been “pursuing his rights diligently” and (2) that “some extraordinary

circumstance stood in his way” to prevent timely filing. Id. at 2562. Mr. Johnson

alleges no such circumstance, nor does he explain why this writ is being sought

nearly a decade after his conviction became final.

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      Where a district court dismisses a § 2255 motion on procedural grounds, a

COA requires the movant to demonstrate that it is reasonably debatable whether

(1) the motion states a valid claim of the denial of a constitutional right and (2)

the district court’s procedural ruling is correct. Slack v. McDaniel, 529 U.S. 473,

484 (2000). The district court’s ruling concerning the time bar is not reasonably

debatable. We need not address whether Mr. Johnson’s substantive claims pose

reasonably debatable issues. Id.

      We DENY a COA, DENY IFP status, and DISMISS the appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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