                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          DEC 2 1999
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk


 JOSE LINCOLN BLEA,

               Plaintiff - Appellant,                   No. 99-2142
          v.                                           D. New Mexico
 UNITED STATES OF AMERICA,                    (D.C. No. CIV-98-1239-LH/DJS)

               Defendant - Appellee.


                            ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.



      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.

      Jose Lincoln Blea, appearing pro se, seeks a certificate of appealability to

appeal the district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set



      *
       This order and judgment is not binding precedent, except under the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.
aside or correct his fifteen year sentence for being a felon-in-possession of a

firearm, in violation of 18 U.S.C. § 922(g), as enhanced by the armed career

criminal statute, 18 U.S.C. § 924(e). We deny a certificate of appealability and

dismiss the appeal.

      Mr. Blea was indicted on March 7, 1991, on one count of possession with

intent to distribute cocaine and six firearms counts, including being a felon-in-

possession of a firearm. Because Mr. Blea had been convicted in New Mexico

state court in 1975 of five counts of heroin trafficking and received concurrent

sentences of ten to fifty years for each one, the government gave notice that it

would seek an enhanced sentence for Mr. Blea as an armed career criminal under

18 U.S.C. § 924(e). Mr. Blea pled guilty to the felon-in-possession count in

exchange for the dismissal of the other six counts. In the Memorandum of

Understanding supporting his guilty plea, Mr. Blea and his attorney stipulated that

the five prior heroin trafficking convictions made him eligible for an enhanced

sentence under § 924(e).

      On August 31, 1991, Mr. Blea was sentenced to fifteen years imprisonment

followed by two years of supervised release. 1 Mr. Blea did not appeal the

conviction or sentence. He first challenged his sentence when he filed his pro se



      1
        Fifteen years is the mandatory minimum enhanced sentence under § 924(e)
for a felon-in-possession conviction.

                                         -2-
§ 2255 motion on October 7, 1998, alleging the five prior convictions were

improperly used to enhance his sentence and that his attorney was ineffective in

failing to investigate his prior criminal history and argue that the previous

convictions could not be used to enhance his sentence.

      The magistrate judge to whom the matter was referred recommended

dismissal of the motion with prejudice on the ground that the motion was

untimely or, alternatively, that on the merits Mr. Blea was not entitled to relief.

Mr. Blea filed written objections to the magistrate judge’s report and

recommendation. The district court adopted that report and recommendation and

dismissed the action with prejudice. 2

      The government has filed a motion to dismiss this appeal, arguing that

Mr. Blea’s § 2255 motion was procedurally barred or, alternatively, meritless.

We agree.

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) became

effective on April 24, 1996. The AEDPA imposed a one-year limitation on

§ 2255 petitions from “the date on which the judgment of conviction becomes


      2
        The district court made no ruling on Mr. Blea’s request for a certificate of
appealability. Under our Emergency General Order of October 1, 1996, we deem
the district court’s failure to issue a certificate of appealability within thirty days
after filing of the notice of appeal as a denial of a certificate. See United States
v. Riddick, 104 F.3d 1239, 1241 n.2 (10th Cir.), overruled on other grounds,
United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied,
118 S. Ct. 1375 (1998).

                                          -3-
final.” 28 U.S.C. § 2255(1). In United States v. Simmonds, 111 F.3d 737, 746

(10th Cir. 1997), we held that “prisoners whose convictions became final on or

before April 24, 1996 must file their § 2255 motions before April 24, 1997.”

Mr. Blea’s conviction became final in 1991. The one-year grace period

applicable to inmates like Mr. Blea expired on April 24, 1997. Because Mr. Blea

did not file his § 2255 motion until October 7, 1998, it is untimely under the

AEDPA and Simmonds. 3


      3
        Were we to address the merits of Mr. Blea’s motion, we would agree with
the district court that the motion is meritless. Mr. Blea argues that his sentence
should not have been enhanced under § 924(e) because the predicate convictions,
the five heroin trafficking convictions, should have been considered a single
criminal enterprise. He bases this argument on the fact that “the five (5) prior
sentences were single counts of a multiple count indictment, all the sentences
were imposed on the same day, were committed in a short period of time, in close
geographical proximity, were solved during the course of a single investigation,
shared the same modus operandi, and were animated by the same motive.”
Appellant’s Opening Br. at 2.
       Section 924(e)(1) requires that the predicate convictions be “committed on
occasions different from one another.” 18 U.S.C. § 924(e)(1). Mr. Blea’s heroin
trafficking offenses occurred in 1975 on March 18, 19, 21, 28 and April 9. We
have held that “drug offenses committed at ‘distinct, different times’ will be
treated as separate predicate offenses for purposes of § 924(e)(1).” United States
v. Johnson, 130 F.3d 1420, 1431 (10th Cir. 1997) (collecting cases), cert. denied,
119 S. Ct. 78 (1998). In Johnson, we held that drug offenses involving the same
drug, occurring in the same geographical area, sharing the same modus operandi,
and separated by three days and by five months “were clearly distinct in time and
separate criminal episodes for purposes of § 924(e)(1).” Id.; see also United
States v. Samuels, 970 F.2d 1312, 1315 (4th Cir. 1992) (holding that two drug
offenses one day apart were separate offenses for § 924(e)(1) purposes); United
States v. Roach, 958 F.2d 679, 683-84 (6th Cir. 1992) (holding that three drug
sales occurring in a sixteen day period were separate offenses for § 924(e)(1)
                                                                        (continued...)

                                         -4-
      For the foregoing reasons, we DENY the certificate of appealability and

DISMISS the appeal.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




      3
        (...continued)
purposes); United States v. Tisdale, 921 F.2d 1095, 1098-99 (10th Cir. 1990)
(holding that three separate burglary offenses had occurred for § 924(e)(1)
purposes when defendant broke into a shopping mall and burglarized two
businesses and a post office). In Johnson we cited with approval United States v.
Maxey, 989 F.2d 303 (9th Cir. 1993), in which the Ninth Circuit held that drug
offenses committed at distinct and different times are separate predicate offenses
under § 924(e)(1) “even if committed within hours of each other, similar in
nature, and consolidated at trial or sentencing.” Id. at 306. In sum, the prior
heroin trafficking offenses were properly considered separate predicate offenses
for purposes of enhancement of Mr. Blea’s sentence under § 924(e)(1).
       Mr. Blea also argues that his attorney was ineffective in failing to argue
that the prior convictions should not have been considered separate offenses for
enhancement purposes. To establish his counsel was ineffective, Mr. Blea must
demonstrate deficient performance and prejudice. See Strickland v. Washington,
466 U.S. 668 (1984). Given our conclusion above, we cannot say that Mr. Blea’s
counsel’s performance was deficient in failing to pursue the argument about the
predicate offenses. Moreover, “[t]o show prejudice in the guilty plea context,
[Mr. Blea] must establish that there is a reasonable probability that, but for
counsel’s errors, [he] would not have pleaded guilty and would have insisted on
going to trial.” See United States v. Kramer, 168 F.3d 1196, 1201 (10th Cir.
1999). In this case, Mr. Blea pled guilty in exchange for the dismissal of six
counts against him, and he agreed to the sentence enhancement. He has not
demonstrated that he would have foregone that favorable bargain had his attorney
done anything differently.

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