                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 5, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-3095
          v.                                              (D. Kansas)
 JONEARL B. SMITH,                          (D.C. Nos. 6:08-CV-01241-MLB and
                                                  6:06-CR-10237-MLB-1)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


      On September 10, 2009, this court entered an Order Granting and Denying

Certificate of Appealability in this matter. It authorized Mr. Smith to appeal the

district court’s denial of his motion under 28 U.S.C § 2255 on one ground:

namely, that his claim of ineffective assistance in the negotiation of his guilty

plea was timely under § 2255(f)(4). Our order directed the United States to file a

responsive brief.


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      The brief by the United States does not dispute the merits of Mr. Smith’s

claim that this component of his § 2255 motion was timely under §2255(f)(4). It

contends solely that he failed to preserve the issue because he did not argue in

district court that his motion was timely under that provision. Although we can

sympathize with the district court in not seeing the point, we nevertheless believe

that Mr. Smith’s pro se motion under § 2255 adequately presented the issue. We

therefore REVERSE the district court’s denial of Mr. Smith’s motion and

REMAND for further proceedings regarding whether the claim was in fact timely

under § 2255(f)(4), and, if so, whether Mr. Smith was entitled to relief on the

merits. (Of course, if the district court decides that it is easier to resolve the

matter on the merits than on the timeliness issue, it may do so.)

                                         ENTERED FOR THE COURT


                                         Harris L Hartz
                                         Circuit Judge




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