                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      February 9, 2007
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,
                                                        No. 06-8031
 v.                                               (D.C. No. 05-CV-16-ABJ)
                                                         (D . W yo.)
 DANIEL R ICH ARD ARO S,

          Defendant - Appellant.



                                ORDER
                 DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Defendant-Appellant Daniel Richard A ros, a federal inmate appearing pro

se, seeks a certificate of appealability (COA) allowing him to appeal the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. The district court denied the motion as time-barred under the one-year

limitation period of § 2255. Because we determine that M r. Aros has not made a

“substantial showing of the denial of a constitutional right,” id. § 2253(c)(2);

Slack v. M cDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA and dismiss the

appeal.

      M r. Aros w as convicted following a jury trial of conspiracy to traffic in

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & 846.
He was sentenced to 188 months’ imprisonment, five years’ supervised release, a

$2,000 fine, and a $100 special assessment. His conviction and sentence w ere

affirmed on direct appeal. United States v. M artinez, 77 F.App’x 490 (10th Cir.

2003). He filed the instant § 2255 motion on January 13, 2005, claiming that (1)

his sentence was enhanced without an admission by him or a jury finding, (2) his

counsel was ineffective for not presenting Apprendi issues on direct appeal, and

(3) the trial court gave an improper jury instruction in light of Apprendi. See

Apprendi v. New Jersey, 530 U.S. 466 (2000). The § 2255 motion was filed by

M r. Aros’s trial counsel, and M r. Aros claims that this attorney agreed to file the

motion for him but not to represent him in the § 2255 proceedings.

      The district court held that M r. Aros’s conviction became final on January

8, 2004, the day the 90-day period to seek certiorari from the United States

Supreme Court following our affirmance had expired. See Sup. Ct. R. 13.

Absent other statutory grounds for tolling, M r. Aros had one year from that date

to file a § 2255 motion; his filing on January 13, 2005, was therefore untimely.

He contends that we should consider the limitations period equitably tolled

because his trial counsel lulled him into a false sense of security by agreeing to

timely file his § 2255 motion, causing him not to file on his own. I R. Doc. 20,

Ex. A. Equitable tolling requires an inmate to show both extraordinary

circumstances beyond his control responsible for the late filing and diligent

pursuit of his claims. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006).

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The district court determined that, even assuming the facts asserted by M r. Aros

were accurate, the attorney error described did not constitute extraordinary

circumstances. W e do not think the district court’s conclusion that this motion is

time-barred and not saved by equitable tolling is reasonably debatable. The

mistake in this case is in the same league with ordinary attorney errors which

consistently have been found not to warrant equitable tolling. See Rouse v. Lee,

339 F.3d 238, 248-49 (4th Cir. 2003) (en banc) cert. denied, 541 U.S. 905 (2004);

M odrowski v. M ote, 322 F.3d 965, 967-68 (7th Cir. 2003); see also United States

v. M artin, 408 F.3d 1089, 1093 (8th Cir. 2005) (“[S]erious attorney misconduct,

as opposed to mere negligence, may warrant equitable tolling.”) (quotation marks

omitted). W e agree with the district court that M r. Aros bore the risk of untimely

filing in this case, particularly given that trial counsel declined to represent him.

      W e DENY a COA and IFP status, and we DISM ISS the appeal.



                                               Entered for the Court

                                               Paul J. Kelly, Jr.
                                               Circuit Judge




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