                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            DEC 9 2002
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,
                                                          No. 00-6202
    v.                                               D.C. No. 91-CR-220-T
                                                       (W.D. Oklahoma)
    NORMAN PRECIADO-QUINONEZ,

                  Defendant - Appellant.


                               ORDER AND JUDGMENT         *




Before EBEL , PORFILIO , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Defendant Norman Preciado-Quinonez was convicted on several cocaine

trafficking charges and sentenced to a total of 360 months’ imprisonment in 1992.



*
      This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
His conviction and sentences were affirmed on direct appeal.         See United States v.

Preciado , No. 92-6371, 1993 WL 430336 (10         th Cir. Oct. 26, 1993),   cert. denied ,

510 U.S. 1137 (1994). Over five years later, he filed a “Motion to Dismiss

Indictment,” arguing that his indictment had not alleged the full quantity of

cocaine later attributed to him, that he had not received the prior notice required

by 21 U.S.C. § 851 for drug-recidivist enhancement, and that his counsel had

been constitutionally ineffective for failing to pursue these issues. The district

court construed this pleading as a motion to vacate, set aside or correct sentence

under 28 U.S.C. § 2255, and denied it as time-barred by the one-year limitations

provision included in the statute.      See United States v. Simmonds , 111 F.3d 737,

746 (10 th Cir. 1997) (pursuant to paragraph six of § 2255, federal “prisoners

whose convictions became final on or before April 24, 1996, must file their

§ 2255 motions before April 24, 1997”).

       Defendant requests a certificate of appealability (COA) to secure review of

the district court’s denial of his motion. He notes, in particular, that his objection

regarding the indictment’s specification of drug quantities has since been

bolstered by the Supreme Court’s decision in       Apprendi v. New Jersey , 530 U.S.

466 (2000). For the reasons that follow, we deny defendant’s request for a COA

and, accordingly, dismiss the appeal.      See 28 U.S.C. § 2253(c) (“appeal may not

be taken” without COA).


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       In Slack v. McDaniel , 529 U.S. 473 (2000), the Supreme Court held that

“when the district court denies a habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claim,” to obtain a COA the

prisoner must show “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and . . . whether

the district court was correct in its procedural ruling.”        Id. at 484. Because we

dispose of defendant’s COA application on the basis of the latter, procedural

issue, we need not reach the merits of the substantive claims stated in defendant’s

motion.

       We have repeatedly held that a motion to dismiss an indictment, pursuant to

Fed. R. Crim. P. 12(b)(2), must be filed before final judgment; after that time a

pleading challenging the adequacy of an indictment is properly deemed a § 2255

motion. See, e.g., United States v. Nelson      , No. 02-3056, 2002 WL 31243873, at

*2 (10 th Cir. Oct. 7, 2002) (unpub.);     United States v. Sather , No. 01-7083, 2002

WL 1045986, at **1 (10 th Cir. May 24, 2002) (unpub.);             United States v. Stewart ,

No. 01-5045, 2001 WL 913783, at **2 (10             th Cir. Aug. 14, 2001) (unpub.);   cf.

Marteney v. United States , 216 F.2d 760, 761-62 (10           th Cir. 1954) (“see[ing] no

impropriety in the [district] court’s treatment of the pleadings [seeking arrest of

judgment on the ground that the indictment failed to charge a federal offense] as

motions to vacate under Section 2255”). Accordingly, the district court correctly


                                              -3-
held defendant’s motion was subject to the one-year limitation period in § 2255,

despite its nominal designation as a motion to dismiss the indictment.

       The remaining question is whether any of defendant’s claims fall within

one of § 2255’s favorable accrual provisions, which delay commencement of the

limitation period beyond the final judgment date.       See § 2255 par. six, subsecs.

(2)–(4). As neither government impediments to filing nor newly discovered facts

are involved, the only alternate accrual date we are concerned with is “the date on

which the right 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      .” Id. , subsec. (3) (emphasis added). One

of defendant’s claims implicates this provision–his objection to the discrepancy

between the drug quantities in the indictment and those supporting his sentence

involves the right recently recognized in      Apprendi . However, the requisite

retroactivity of that right was clearly rejected in   United States v. Mora , 293 F.3d

1213, 1219 (10 th Cir.), cert. denied , 123 S. Ct. 388 (2002).

       Finally, “this case does not present extraordinary circumstances such that

defendant should receive the benefit of equitable tolling.”       Unites States v. Willis ,

202 F.3d 1279, 1281 n.3 (10      th Cir. 2000). In particular, the ineffectiveness

claim, time-barred itself, could not in any event be advanced as a ground for

equitable tolling of the   Apprendi claim, because “an ineffective assistance


                                              -4-
argument premised on counsel’s failure to anticipate    Apprendi would be

untenable.” Valenzuela v. United States , 261 F.3d 694, 700 (7 th Cir. 2001)

(citation omitted).

      The appeal is DISMISSED. Defendant’s motion for leave to proceed on

appeal without prepayment of costs or fees is granted, and his motion regarding

the status of his appeal is denied as moot.

                                                       Entered for the Court


                                                       David M. Ebel
                                                       Circuit Judge




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