252 F.3d 449 (D.C. Cir. 2001)
United States of America, Appelleev.Carlos Saro, a/k/a Cristobal, Appellant
No. 00-3005
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2001Decided June 12, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 90cr00449-03)
A. J. Kramer, Federal Public Defender, appointed by the  court, argued the cause and filed the briefs as amicus curiae  on the side of appellant.
Carlos Saro, appearing pro se, was on the briefs for  appellant.
Matthew E. Sloan, Assistant U.S. Attorney, argued the  cause for appellee. With him on the brief were Wilma A.  Lewis, U.S. Attorney at the time the brief was filed, and John  R. Fisher, Roy W. McLeese, III, Robert D. Okun and John P.  Dominguez, Assistant U.S. Attorneys.  Mary-Patrice Brown,  Assistant U.S. Attorney, entered an appearance.
Before:  Edwards, Chief Judge, Rogers and Garland,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Carlos Saro seeks relief from the  district court's denial of his motion for leave to file a motion  to vacate his sentence.  Although the procedural complexities  of this case require some discussion, we conclude that the  district court was plainly correct in ruling that Saro's motion  was time-barred. We therefore cannot grant Saro's request  for relief.


2
* In May 1991, Saro was convicted in the United States  District Court for the District of Columbia on five counts of  distribution of and conspiracy to distribute cocaine base, and  was sentenced to life imprisonment.  In 1994, we denied his  appeal and affirmed his convictions and sentence.  United  States v. Saro, 24 F.3d 283 (D.C. Cir. 1994).  Saro did not  seek certiorari from the Supreme Court.


3
Pursuant to 28 U.S.C.             2255, a federal prisoner may move  the sentencing court to vacate, set aside or correct his  sentence "upon the ground that the sentence was imposed in  violation of the Constitution or laws of the United States, or  that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum  authorized by law, or is otherwise subject to collateral attack."  Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) amended             2255 to impose  a "1-year period of limitation" on motions brought under that  section.  Pub. L. No. 104-132,             105, 110 Stat. 1214, 1220  (1996).  In United States v. Cicero, we held that prisoners  like Saro, whose convictions became final before AEDPA's effective date, had a one-year grace period from that date in  which to file a             2255 motion--yielding a filing deadline of  April 24, 1997.  See 214 F.3d 199, 202 (D.C. Cir. 2000).


4
On August 27, 1997--four months after that deadline--Saro  mailed a pro se pleading to the district court entitled "Motion  for Leave to File a Title 28 U.S.C.             2255."  He did not  attach a substantive             2255 motion to this pleading, nor did  he give any indication of the nature of his underlying claims. Instead, Saro sought an extension of time in which to file a              2255 motion, based on the defalcation of his attorney.  Saro  stated that in late 1996 or early 1997, he contacted attorney  Patrick L. Brown about filing a motion on his behalf.  According to Saro's pleadings and attached correspondence,  Brown told him that the deadline for filing the motion was  April 24, 1997, and that Brown would not start working on  the motion until Saro paid him a retainer.  Brown wrote Saro  on March 24, 1997, saying that he had not yet received the  agreed-upon fee and advising Saro to send it quickly in light  of the impending deadline.  Saro mailed Brown a payment on  March 28, 1997.  Saro never heard from Brown again, and by  May 30, 1997, Saro confirmed through correspondence with  the clerk of the district court that Brown had not filed the              2255 motion.  On July 31, 1997, Saro filed a complaint with  the Disciplinary Counsel of the Supreme Court of Ohio, the  bar of which Brown was a member.  See Mot. for Leave to  File at 1-2, Ex. 2.1


5
On April 30, 1998, the district court denied Saro's motion  for leave to file on the ground that it was "time-barred  because it was filed significantly more than a year after the  enactment of the AEDPA."  United States v. Saro, No.  90-cr-449, slip op. at 2 (D.D.C. Apr. 30, 1998) ("April 1998  Order").  In response to Saro's argument that the limitations  period should be tolled because of his lawyer's malfeasance,  the court concluded that there were "no 'extraordinary circumstances' ... which would justify equitable tolling."  Id. The court explained that although Saro had learned of  Brown's failure to file by May 30, 1997, he did not submit his  motion for leave to file until three months later.  Moreover,  Saro offered "no explanation for this three-month delay."  Id.


6
Saro responded to the court's order with a series of motions seeking reconsideration, all of which the court denied. Saro subsequently asked the district court to issue a Certificate of Appealability (COA), required by 28 U.S.C.             2253(c)  to appeal "the final order in a proceeding under section 2255." The district court denied this request as well.  Saro filed  notices of appeal from one of the district court's denials of  reconsideration and from its denial of a COA.2  We consolidated the notices of appeal and appointed the Federal Public  Defender as amicus curiae to present arguments on Saro's  behalf.3

II

7
As amended by AEDPA in 1996, 28 U.S.C.             2253 states: "Unless a circuit justice or judge issues a certificate of  appealability, an appeal may not be taken to the court of  appeals from ... the final order in a proceeding under section  2255."  28 U.S.C.             2253(c)(1);  see Pub. L. No. 104-132,              102, 110 Stat. 1214, 1217 (1996).  When a COA is required,  we treat a notice of appeal as an application for a COA.  See  United States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir.  2000);  see also Fed. R. App. P. 22(b);  Slack v. McDaniel, 529  U.S. 473, 483 (2000).  Although Saro applied for a COA in the  district court, he now contends that no COA is required to  hear his appeal because the district court's April 1998 decision was not "the final order in a proceeding under section  2255," but rather was merely the denial of leave to file a              2255 motion.  The United States contends that a COA is  required because that decision was in fact the final order in a              2255 proceeding.


8
If a COA is required, it is a prerequisite to our consideration of Saro's appeal.  See 28 U.S.C.             2253(c);  Slack, 529  U.S. at 485.  Thus, we may not simply assume that a COA is  not required and proceed to the merits of Saro's claim. Cf.  Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94  (1998) (holding that federal courts must determine that they  have jurisdiction before turning to the merits of a case).  We  may, however, assume that a COA is required, and then  proceed to consider whether Saro can satisfy the requirements for issuance of a COA.  Cf. Slack, 529 U.S. at 485  (holding that "[e]ach component of the             2253(c) showing is  part of a threshold inquiry");  Ruhrgas AG v. Marathon Oil  Co., 526 U.S. 574, 584-85 (1999) (holding that jurisdictional  questions may be resolved in any order).  Whether such an  approach is fair to Saro if in fact no COA is required for his  appeal is, of course, another question--which we address in  Part III below.


9
Under             2253, a COA may issue "only if the applicant has  made a substantial showing of the denial of a constitutional  right."  28 U.S.C.             2253(c)(2).  In Slack v. McDaniel, the  Supreme Court held that when a "district court denies a  habeas petition on procedural grounds without reaching the  prisoner's underlying constitutional claim, a COA should issue  ... if the prisoner shows, at least, [1] that jurists of reason  would find it debatable whether the petition states a valid  claim of the denial of a constitutional right, and [2] that  jurists of reason would find it debatable whether the district  court was correct in its procedural ruling."  529 U.S. at 478. The Slack test applies to Saro's case, because the district  court denied Saro's motion solely on the procedural ground  that it was barred by the statutory deadline.


10
The government contends that Saro cannot meet the first  requirement of the Slack test--a debatable claim of the denial  of a constitutional right--because Saro has never described  the nature of his underlying constitutional claim.  In response, Saro contends that the requirement of a debatable  constitutional claim cannot be applied literally in a case like  his, where the underlying             2255 motion was never filed  because the district court denied leave to file.  We need not  resolve this dispute regarding Slack's first requirement, however, because it is quite clear that Saro cannot meet Slack's  second requirement:  that jurists of reason would find it  debatable whether the district court was correct in its procedural ruling.4


11
The government asks us to hold that reasonable jurists  would not dispute the correctness of the district court's ruling  that Saro's motion was time-barred, both because equitable  tolling never applies to proceedings under             2255, and because even if the doctrine does apply, malfeasance by a  prisoner's attorney does not constitute the "extraordinary  circumstances" necessary to bring the doctrine into play.  See  Cicero, 214 F.3d at 203 (holding that if equitable tolling  applies to             2255, tolling is warranted only "if extrordinary  circumstances beyond a prisoner's control" prevented him  from filing by the statutory deadline).5  We need not reach either such conclusion to resolve this case.  Even if             2255's  period of limitations is subject to equitable tolling, and even if  the malfeasance of Saro's lawyer qualifies for tolling, the  amount of time tolled would not excuse Saro's three-month  delay after he learned of his lawyer's failure to file.


12
The Supreme Court has explained that "[p]rinciples of  equitable tolling usually dictate that when a time bar has  been suspended and then begins to run again upon a later  event, the time remaining on the clock is calculated by  subtracting from the full limitations period whatever time ran  before the clock was stopped."  United States v. Ibarra, 502  U.S. 1, 4 n.2 (1991).  Saro's pleadings indicate that he did not  engage Brown to file the             2255 motion until, at the earliest,  March 28, 1997--the date he sent the payment that Brown  told him was necessary for work to begin.  Accordingly, even  if Brown's defalcation is the kind of "extraordinary circumstance" that warrants tolling, the earliest date upon which  tolling could begin was March 28--at which point Saro had  approximately one month remaining before the April 24, 1997  filing deadline.  Saro's pleadings also make clear that he  knew Brown had failed to file the             2255 motion no later than  May 30, 1997, when Saro received confirmation from the  district court clerk that no filing had been made.  Thus, May  30 was the latest date upon which the time bar would begin to  run again, at which point principles of equitable tolling would  leave Saro with another month--until the end of June--to  make his             2255 filing with the district court.6  Saro, however, did not file within a month of learning of his lawyer's  malfeasance.  Instead, he waited three months--until the end  of August 1997--missing even an equitably extended deadline  by two months.


13
Saro contends that this should not be the end of our  inquiry, and that we should extend the limitations period  through the date of his August filing, or at least remand for a  hearing into the circumstances of this additional delay.  Had  Saro offered an explanation for the additional delay, he might  have an argument in this regard.  But it is Saro's burden to  establish that equitable tolling is warranted,7 and he has  offered no explanation for his failure to file even a request for  an extension of time during the three months from May  through August:  not in his multiple pleadings in the district  court, and not in any subsequent pleading on appeal.8  As  noted above, this circuit held in Cicero that if equitable tolling  applies at all under             2255, it applies only in "extraordinary  circumstances."  214 F.3d at 203.  Moreover, the Cicero court  rejected as insufficiently extraordinary the fact that a prisoner's preparations for filing during the final months of the  AEDPA grace period were interrupted when he was stabbed  and hospitalized, and when his legal papers became unavailable because he was transferred to a different prison.  Id. at  201.  It must follow that when a prisoner proffers no reason  whatsoever for his failure to file by an already-extended  deadline, additional equitable tolling is plainly unwarranted  and the district court need conduct no further factfinding on  the subject.  See generally id. at 204 (declining to remand to  the district court for additional factfinding).


14
In sum, we conclude that the district court was plainly  correct in holding that there were "no 'extraordinary circumstances' ... which would justify equitable tolling" sufficient to  render Saro's filing timely in this case.  April 1998 Order at  2.9  Moreover, this result is so clear, particularly in light of  the absence of any explanation for Saro's failure to file for  three months after learning of his lawyer's failure to file, that  "jurists of reason" would not "find it debatable whether the  district court was correct in its procedural ruling."  Slack,  529 U.S. at 478.  Accordingly, Saro is ineligible for a COA. See id.

III

15
To this point, our analysis has proceeded upon the assumption that Saro requires a COA in order to appeal the district  court's denial of his motion for leave to file a             2255 motion. Saro objects that such an assumption is unfair to him, arguing  that a COA is only required to appeal from the denial of a              2255 motion, and not from the denial of a motion to file  such a motion.  Saro's objection to our analytical approach  would rest on firm ground, and hence require a resolution of  whether a COA is actually required in this case, if the  standard for reviewing a COA application were less favorable  to him than the standard for reviewing an appeal.10  But the  COA standard is not less favorable, and Saro's objection is  therefore misplaced.


16
Our conclusion that Saro does not qualify for a COA turned  on the correctness of the district court's ruling that Saro's  out-of-time filing could not be saved by the doctrine of  equitable tolling.  But just as that procedural ruling was the  central issue in our COA analysis, so too would it be were the  case analyzed as an appeal.  Moreover, the standard for  reviewing the correctness of that ruling on an application for  a COA is more favorable to Saro than is the standard for  reviewing the merits of an appeal.  To qualify for a COA: "[T]he petitioner need not show that he should prevail on the  merits....  Rather, he must demonstrate that the issues are  debatable among jurists of reason;  that a court could resolve  the issues [in a different manner];  or that the questions are  adequate to deserve encouragement to proceed further." Mitchell, 216 F.3d at 1130 (alterations and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). As we have held in Part II, Saro cannot meet even this liberal  standard.  Accordingly, he necessarily would fail on the merits were we to treat his notice as an appeal rather than as an  application for a COA.

IV

17
For the foregoing reasons, Saro's appeal, treated as an  application for a COA, is


18
Dismissed.



Notes:


1
 Saro subsequently advised the district court that Brown had  been disbarred by the Ohio Supreme Court.


2
 Although there might otherwise be questions concerning the  timeliness of these notices of appeal, the United States agrees that  both were timely filed, as was the application to the district court  for a COA, because none of the orders entered by the district court  complied with the "separate document" requirement of Federal  Rule of Civil Procedure 58.  See Fed. R. Civ. P. 58 (providing that  "[e]very judgment shall be set forth on a separate document," and  that a "judgment is effective only when so set forth");  United  States v. Feuver, 236 F.3d 725, 727-28 & n.4 (D.C. Cir. 2001) (noting  government's concession that Rule 58 applies to             2255 proceedings);  Kidd v. District of Columbia, 206 F.3d 35, 39-40 (D.C. Cir.  2000) (discussing standard for satisfying requirements of Rule 58). While the time limit for filing a notice of appeal does not begin to  run until the district court files a judgment that conforms with Rule  58, this court has jurisdiction to decide an appeal filed before entry  of a conforming judgment.  See Pack v. Burns Int'l Sec. Serv., 130  F.3d 1071, 1072-73 (D.C. Cir. 1997).


3
 Both parties agree that resolution of the issues raised by the  notice of appeal from the district court's denial of a COA will  resolve this case in its entirety.  Hence, we need not delve into the  procedural problems surrounding Saro's appeal from the court's  earlier denial of reconsideration.


4
 In Slack, the Supreme Court advised courts of appeals that: "Each component of the             2253(c) showing is part of a threshold  inquiry, and a court may find that it can dispose of the application  in a fair and prompt manner if it proceeds first to resolve the issue  whose answer is more apparent....  The recognition that the  'Court will not pass upon a constitutional question ... if there is  also present some other ground upon which the case may be  disposed of,' ... allows and encourages the court to first resolve  procedural issues."  529 U.S. at 485 (quoting Ashwander v. TVA,  297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).


5
 Cicero found it unnecessary to decide whether equitable tolling  applies to             2255 proceedings because the circumstances cited by  the prisoner did not qualify as "extraordinary."  214 F.3d at 203.


6
 See Ibarra, 502 U.S. at 4 n.2 ("[F]or example, a motion to  reconsider filed after 20 days, if it tolled the 30-day period to  appeal, would leave at most only 10 days to appeal once the  reconsideration motion was decided.").  The new deadline may be  calculated in an equivalent way by tacking the length of the tolled  period--that is, the period from March 28 to May 30--onto the  original limitations deadline of April 24, 1997.


7
 See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000)  (noting that "the party seeking to establish tolling typically carries  that burden," and applying that rule to equitable tolling under  AEDPA);  Bayer v. United States Dep't of Treasury, 956 F.2d 330,  333 (D.C. Cir. 1992) (holding that a Title VII plaintiff bears the  burden of establishing his entitlement to equitable tolling).


8
 Saro has offered no explanation notwithstanding that the district  court repeatedly stated that it could not grant relief because Saro  had failed to explain the three-month delay.  See United States v.  Saro, No. 90-cr-449, slip op. at 4 n.2 (D.D.C. July 23, 1999);  United  States v. Saro, No. 90-cr-449, slip op. at 3 (D.D.C. June 25, 1998); United States v. Saro, No. 90-cr-449, slip op. at 2 (D.D.C. Apr. 30,  1998).


9
 We have examined whether the court was "correct," rather than  whether it "abused its discretion," because we employ de novo  review when a district court holds--as the court appears to have  done here--that the facts cannot justify equitable tolling as a  matter of law.  See Smith-Haynie v. Dist. of Columbia, 155 F.3d  575, 578 n.4 (D.C. Cir. 1998) (noting that "the doctrine of equitable  tolling ordinarily involves discretion on the trial judge's part," but  employing de novo review because the district court found as a  matter of law that the facts "could not support invocation of the  equitable tolling doctrine");  see also Dunlap v. United States, 250 F.3d 1001, 1007-08 & n.2 (6th Cir. May 7, 2001)  (reviewing a district court's             2255 equitable tolling decision de  novo, where the district court declined to grant tolling as a matter  of law).


10
 For example, had Saro's COA application foundered upon the  first of Slack's requirements--that he have a debatably valid claim  of the denial of a constitutional right--he would have reason to  complain, because such a requirement would not typically apply on  appeal from a district court's denial of a motion to file out of time.


