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

                                                                       June 9, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



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

                 Plaintiff-Appellee,                    No. 05-4138
          v.                                            (D. of Utah)
 JO SE V ELA SQ U EZ-M EZA ,                   (D.C. Nos. 05-CV-402-TC and
                                                     2:96-CR-149-TC)
                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **




      Jose Velasquez-M eza seeks a Certificate of Appealability (COA) to appeal

the denial of his M otion to Vacate or Reduce Sentence pursuant to 28 U.S.C.

§ 2255. Because his motion is untimely, we DENY the COA and DISM ISS his

appeal.




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      On April 22, 2002, Velasquez-M eza pleaded guilty to possession of

methamphetamine with intent to distribute and was sentenced to 120 months in

prison followed by 60 months of supervised release. He appealed the conviction

to this court, and we affirmed on October 3, 2003. He did not file a petition for

certiorari. On M ay 5, 2005, Velasquez-M eza filed a § 2255 motion in the district

court, but the district court denied the motion because it w as time barred.

                                    II. Analysis

      A circuit court may issue a CO A “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). If a district court rejects a claim on procedural grounds and does

not reach the merits, the appellant seeking a COA must demonstrate “that jurists

of reason would find it debatable w hether the district court was correct in its

procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000). In our

analysis, we construe V elasquez-M eza’s pleadings liberally since he appears pro

se. See Cum mings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).

      Here, there can be no debate because Velasquez-M eza’s petition was

untimely. As the district court explained, for purposes of a § 2255 motion, if a

prisoner does not file a petition for certiorari with the United States Supreme

Court after losing a direct appeal, the one-year limitation begins to run when the

time for filing a petition for certiorari ends. United States v. Burch, 202 F.3d

                                         -2-
1274, 1279 (10th Cir. 2000). The time for filing a petition for certiorari would

have expired on January 2, 2004, ninety days after this court affirmed Velasquez-

M eza’s conviction. For the motion to have been timely, Velasquez-M eza would

have had to file one year after that. Since he did not file until M ay 5, 2005, the

§ 2255 motion is time barred. 1

                                   III. Conclusion

      For the foregoing reasons, we D ENY Velasquez-M eza’s application for a

COA and DISM ISS this appeal. His motion to proceed in forma pauperis is

G RA N TED .

                                                Entered for the Court

                                                Timothy M . Tymkovich
                                                Circuit Judge




      1
        Velasquez-M eza filed a motion for reconsideration in the district court on
the ground that his attorney did not inform him that he had the option of seeking
certiorari and that he w ould have done so had he known that was an option. In
disposing of that motion, the district court assumed, without deciding, that the
statute of limitations would have been tolled in this case, but went on to conclude
that the motion was nevertheless meritless. On appeal, Velasquez-M eza does not
reassert his claim that the statute of limitations should be tolled. However, were
we to reach the merits of his appeal, we could not say that the district court’s
ruling on the merits was debatable in light of our earlier opinion in this case. See
United States v. Velasquez-M eza, 76 F.App’x 926 (10th Cir. 2003).

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