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

                                                                       December 14, 2005
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT                             Clerk of Court


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                        No. 04-2238
                                            (D.C. Nos. CV-04-0854 MV/RHS and
 v.
                                                     CR-00-1081 MV)
                                                         (D. N.M.)
 THOMAS EDWARD CALABAZA,

       Defendant-Appellant.


                                      ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Thomas Edward Calabaza, a federal prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255

petition. For substantially the same reasons set forth by the district court, we

DENY Calabaza’s request for a COA and DISMISS.

      Calabaza challenged his conviction for second degree murder in the court

below by bringing a motion under Fed. R. Crim. P. 33. He asserted that new

evidence has been uncovered that would produce a different result if a new trial

were held. Accordingly, the district court construed this motion as a motion for a

new trial. “Rule 33 of the Federal Rules of Criminal Procedure, which authorizes
motions for new trial, applies only to cases in which a trial, either to the court or

to a jury, has taken place.” United States v. Lambert, 603 F.2d 808, 809 (10th

Cir. 1979) (emphasis in original). Because Calabaza was convicted following a

guilty plea, the district court denied the Rule 33 motion. The district court further

held that although the motion invokes 28 U.S.C. § 2255, it would, like this court

in Lambert, “decline to consider sua sponte the [Rule 33] motion as one pursuant

to § 2255.” Id. at 809 n.3. Calabaza’s subsequent request for a COA was

summarily denied.

      The district court correctly ruled that a Rule 33 motion is a legally incorrect

vehicle for challenging a guilty plea. Moreover, Calabaza’s request for a COA

must be denied because a § 2255 petition was not properly before the district

court. Thus, we do not have the denial of a habeas petition before us to consider

on appeal. Finally, even if the district court construed this pro se filing liberally,

see Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002), and converted Calabaza’s

Rule 33 motion into a § 2255 petition, the petition would nevertheless be time-

barred under the one-year limitation period of § 2255 because final judgment was

entered in this proceeding more than four years ago. 28 U.S.C. § 2255(1).

      Calabaza’s application for a COA is therefore DENIED and the case is




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DISMISSED. Appellant’s motion to proceed in forma pauperis is GRANTED.



                                 ENTERED FOR THE COURT

                                 Carlos F. Lucero
                                 Circuit Judge




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