                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      July 30, 2009
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 09-5069
                                                     (N.D. Oklahoma)
v.
                                            (D.C. Nos. 4:08-CV-00527-CVE-PJK
                                                and 4:05-CR-00004-CVE-1)
JUAN DESHANNON BUTLER,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Petitioner, Juan Deshannon Butler, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s dismissal of the motion to vacate,

set aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B) (providing a movant may not appeal the disposition of a

§ 2255 motion unless he first obtains a COA). In 2006, Butler was convicted of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

United States v. Butler, 485 F.3d 569, 570 (10th Cir. 2007). Butler’s conviction

was affirmed by this court on May 7, 2007. Id. at 577. The instant § 2255

motion is dated September 3, 2008, and was filed in the district court on
September 10, 2008. In the motion, Butler asserted several ineffective assistance

of counsel claims.

      The Government argued that Butler’s § 2255 motion was untimely because

it was filed more than one year after his conviction became final. See 28 U.S.C.

§ 2255(f) (setting forth a one-year statute of limitations for § 2255 motions). In

its order of dismissal, the district court determined the one-year limitations period

ended on August 6, 2008, one year after the time to file a petition for a writ of

certiorari to the United States Supreme Court expired. Clay v. United States, 537

U.S. 522, 524-25 (2003). The court concluded Butler was not entitled to

equitable tolling because he had failed to diligently pursue his claims and failed

to demonstrate that his failure to file a timely § 2255 motion was caused by

extraordinary circumstances beyond his control. 1 See Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000). Accordingly, the § 2255 motion was dismissed as

untimely. In his appellate brief, Butler argues the merits of the claims he seeks to

raise in his § 2255 motion. He does not address the district court’s procedural

ruling and presents no argument that the district court miscalculated the one-year

period or erroneously resolved the equitable tolling question.

      To be entitled to a COA, Butler must show “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

      1
       The district court also concluded that a handwritten motion dated August
15, 2008, could not be construed as Butler’s § 2255 motion because it contained
no facts to support the ineffective assistance allegation.

                                          -2-
Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). Our review of the record

demonstrates that the district court’s dismissal of Butler’s § 2255 motion as

untimely is not deserving of further proceedings or subject to a different

resolution on appeal. Accordingly, we deny Butler’s request for a COA and

dismiss this appeal. Butler’s request to proceed in forma pauperis on appeal is

granted.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




                                         -3-
