                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS                  April 17, 2008
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 07-6259
 v.                                              (Nos. 5:07-CV-00795-L and
                                                       CR-04-189-1-L)
 BOBBY FITZGERALD PRINCE, SR.,                           (W.D. Okla.)

              Defendant-Appellant.


                                     ORDER *


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.



      Pro se Defendant Bobby Fitzgerald Prince, Sr., seeks a certificate of

appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2255

motion as untimely. In early 2005, Defendant pled guilty to knowingly

transporting two individuals under the age of sixteen in interstate commerce with

the intent that they engage in prostitution, in violation of 18 U.S.C. § 2423(a).

He was sentenced to 150 months’ imprisonment in June 2005.




      *
        This order is not binding precedent, except under the doctrines of law of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.
      As part of his plea, Defendant waived his right to appeal. However, on

September 19, 2005, 108 days after the judgment and sentence were entered on

the court docket, Defendant filed a motion requesting the district court to grant

him leave to file a notice of appeal under 18 U.S.C. § 3742 out of time. The

district court refused to grant the requested relief, finding Defendant had not met

his burden of providing a sufficient reason for failing to comply with the filing

requirements. 1 We agreed with the district court’s dismissal of the motion,

United States v. Prince, 193 F. App’x 798, 800 (10th Cir. 2006), and the Supreme

Court denied certiorari on January 8, 2007, Prince v. United States, 127 S. Ct.

1013 (2007).

      Defendant now attempts to contest his sentence through the instant § 2255

motion, filed on July 18, 2007. The district court denied Defendant’s § 2255

motion as untimely because he filed it well over one year after his conviction and

sentence became final. See 28 U.S.C. § 2255 (2006) (providing one-year statute

of limitation for § 2255 motions, running from the date on which judgment

became final). Defendant argues the judgment against him became final only

after the Supreme Court denied certiorari of his request for leave to file a notice

of appeal out of time. Therefore, he argues his current § 2255 motion is timely

because he filed it within one year of the Supreme Court’s denial.


      1
        See Fed. R. App. P. 4(b)(1)(A)(i) (explaining notice of appeal must be
filed within ten days after entry of judgment).

                                         -2-
      Defendant misunderstands the nature of the prior proceeding. That action

involved Defendant’s request to file a notice of appeal out of time. It was not a

direct criminal appeal of Defendant’s sentence and conviction. Defendant failed

to file an appeal of his conviction and sentence within ten days of the June 3,

2005 court docket entry. Because he was never granted leave to appeal out of

time by any court, his sentence and conviction became final ten days after entry

on the court docket, or June 13, 2005. The statue of limitation ran from the June

13, 2005 date, not the January 8, 2007 denial by the Supreme Court of

Defendant’s petition for certiorari to review the denial of his motion for leave to

file a notice of appeal out of time.

      Defendant also argues the district court should have construed his original

motion for leave to file out of time as a § 2255 motion because that motion was

filed within the one-year statute of limitation. We do not address Defendant’s

argument on this point because his earlier motion is not before us. We consider

only whether Defendant is entitled to a certificate of appealability to appeal the

district court’s denial of the instant § 2255 motion. To make this determination,

we consider whether Defendant has made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). To meet this burden,

Petitioner must demonstrate “that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

                                         -3-
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      We conclude Defendant has not met this burden and thus DENY his request

for a certificate of appealability and DISMISS the appeal. We GRANT

Defendant’s petition to proceed in forma pauperis.



                                             Entered for the Court



                                             Monroe G. McKay
                                             Circuit Judge




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