                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 28, 2014
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA; and
 MARION FEATHER, Warden,

          Plaintiffs - Appellees,

 v.                                                   No. 13-4180
                                             (D.C. Nos. 2:13-CV-00935-TS &
 JOE DEE STANG,                                     2:10-CR-00712-TS)
                                                       (D. of Utah)
          Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


      Joe Dee Stang, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s order denying his habeas

petition under 28 U.S.C. § 2255 as untimely. He contends his sentence should be

vacated based on the Supreme Court’s decision in Alleyne v. United States, 133 S.

Ct. 2151 (2013), which he asked be applied retroactively to his case. Stang also

moves to proceed in forma pauperis (IFP).




      *
         This order is not binding precedent except under the doctrines of law of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.
       Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we DENY a

COA and DISMISS the appeal. We do, however, grant Stang’s request to proceed

IFP.

                                I. Background

       Stang pleaded guilty to Hobbs Act robbery in violation of 18 U.S.C.

§ 1951(a) and using, carrying and brandishing a firearm during and in relation to

a crime of violence, in violation of 18 U.S.C. § 924(c). On January 4, 2012, the

district court sentenced Stang to 300 months imprisonment, the mandatory

minimum for the second crime. Judgment was entered one day later on January 5,

2012. Stang did not file a direct appeal.

       On October 10, 2013, Stang filed a motion under 28 U.S.C. § 2255 seeking

to vacate his conviction and sentence on the grounds that Alleyne applied

retroactively to his case. The district court denied Stang’s § 2255 motion as

untimely because (1) it was filed outside the one-year statute of limitations period

under § 2255(f)(1); and (2) § 2255(f)(3) did not provide the applicable date for

the limitations period to begin running because Alleyne did not apply retroactively

to cases on collateral review. This appeal followed.

                                 II. Discussion

       Under the Antiterrorism and Effective Death Penalty Act (AEDPA), “[t]he

issuance of a COA is a jurisdictional prerequisite to an appeal” from the district

court’s denial of habeas relief. United States v. Gonzalez, 596 F.3d 1228, 1241

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(10th Cir. 2010). When, as here, the district court denies the habeas petition on

procedural grounds, a COA can issue only when the prisoner demonstrates that

“jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

      Pursuant to § 2255, a federal prisoner has one year from the latest of

several dates to file a motion attacking his sentence. In most instances, the

applicable date is the day on which the conviction became final. 28 U.S.C.

§ 2255(f)(1); see also Clay v. United States, 537 U.S. 522, 524 (2003). If a

defendant does not file a direct appeal, the criminal conviction becomes final

when the time in which to take a direct criminal appeal has expired. United

States v. Prows, 448 F.3d 1223, 1227–28 (10th Cir. 2006). Because Stang’s time

in which to take a direct appeal expired on January 19, 2013, 1 his October 10,

2013 § 2255 motion was not filed within the one-year time period after his

conviction became final and is therefore time-barred under § 2255(f)(1).

      Stang argues that his petition was timely under § 2255(f)(3) because the

one-year limitations period may also run from “the date on which the right


      1
         Federal Rule of Appellate Procedure 4(b)(1)(a)(i) requires a notice of
appeal to be filed within 14 days of the entry of judgment. In this case, the entry
of judgment on January 5, 2012, means that the conviction became final on
January 19, 2012.

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asserted was initially recognized by the Supreme Court, if that right has been

newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review.” § 2255(f)(3). Stang contends that the Supreme

Court’s decision in Alleyne, which was decided on June 17, 2013, created a new

rule for the purposes of § 2255(f)(3).

      We disagree. We have held that, although the Supreme Court in Alleyne

did recognize a new rule of constitutional law, the Supreme Court did not hold

that the new rule was retroactively applicable to cases on collateral review. In re

Payne, 733 F.3d 1027, 1029–30 (10th Cir. 2013). Thus, no reasonable jurist

could debate the district court’s conclusion that the limitations period in

§ 2255(f)(3) did not apply here, and Stang’s motion was untimely under

§ 2255(f)(1).

                                 III. Conclusion

      For the foregoing reasons, we GRANT leave to proceed IFP but DENY

Stang’s application for a COA and DISMISS his appeal.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Circuit Judge




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