                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 6, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 09-2306
                                                          (D. N.M.)
 v.
                                              (D.C. Nos. 1:09-CV-00680-MCA-
                                              WPL and 1:06-CR-00044-MCA-1)
 CURTIS SANDOVAL,

          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Curtis Sandoval applies for a certificate of appealability (“COA”) to

challenge the district court’s dismissal of his 28 U.S.C. § 2255 motion as

untimely. Mr. Sandoval also requests leave to proceed in forma pauperis (“IFP”).

For the reasons discussed below, we deny the COA and the request to proceed

IFP, and dismiss his appeal.

      *
          This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
I. Background

      On July 13, 2009, Mr. Sandoval filed a § 2255 motion before the United

States District Court for the District of New Mexico in which he alleged

ineffective assistance of counsel and asserted that his sentence was in violation of

the First Amendment. The district court had entered judgment on the relevant

conviction on April 25, 2007. Mr. Sandoval did not appeal this conviction or

sentence. Consequently, the district court, noting the one-year limitations period

for § 2255 motions, entered a show cause order asking Mr. Sandoval to explain

why his motion should not be dismissed as untimely. On August 25, 2009, the

district court dismissed Mr. Sandoval’s § 2255 motion with prejudice because it

had not received the requested response from Mr. Sandoval.

      However, the government, on August 26, 2009, filed a notice with the

district court explaining that the government had received a copy of Mr.

Sandoval’s Response to the Show Cause Order on August 6, 2009, but was

unaware that the court had not also received a copy until its receipt of the district

court’s Order of Dismissal. The government attached a copy of Mr. Sandoval’s

Response for the district court’s consideration.

      On August 28, 2009, the district court entered an Amended Order of

Dismissal in which the court discussed Mr. Sandoval’s Response. In his

Response, Mr. Sandoval alleged that he did not have actual knowledge of the one-

year statute of limitations. He also argued that the limitations period was

                                          2
unconstitutional and that the interests of the Navajo Tribe required the district

court to consider his § 2255 motion. Having considered and rejected these

arguments, the district court again dismissed Mr. Sandoval’s § 2255 motion as

untimely.

      On September 3, 2009, Mr. Sandoval filed a Motion for Relief from

Judgment and Rehearing, and on September 14, 2009, he filed a Notice of Appeal

and a Motion for COA. On December 3, 2009, the district court explained that it

had in fact considered the arguments in Mr. Sandoval’s Response when it entered

its Amended Order of Dismissal and, therefore, it denied his Motion for Relief

from Judgment and Rehearing. 1 In response, Mr. Sandoval filed another Notice of

Appeal on December 11, 2009, and requested leave to proceed IFP. On December

29, 2009, the district court denied Mr. Sandoval’s request to proceed IFP because

he had not identified the existence of a reasoned, nonfrivolous argument on

appeal. On February 16, 2010, Mr. Sandoval filed with this court his Application

for COA, his Opening Brief, and his Motion for Leave to Proceed on Appeal

Without Prepayment of Costs or Fees.

II. Analysis

      A defendant may not appeal the district court’s denial of a § 2255 petition

without first obtaining a COA from this court. 28 U.S.C. § 2253(c)(1)(B). We in

      1
           However, the district court never ruled on Mr. Sandoval’s Motion for
a COA. Because the district court did not rule on whether to grant Mr. Sandoval
a COA, we assume it was denied.

                                          3
turn may only issue a COA where “the applicant has made a substantial showing

of the denial of a constitutional right.” Id. § 2253(c)(2). To overcome this

hurdle, Mr. Sandoval must show “that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000); Allen v. Zavaras, 568 F.3d 1197, 1199

(10th Cir. 2009); Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008).

       “If the application was denied on procedural grounds, the applicant faces a

double hurdle. Not only must the applicant make a substantial showing of the

denial of a constitutional right, but he must also show ‘that jurists of reason

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

ruling.”’ Coppage, 534 F.3d at 1281 (quoting Slack, 529 U.S. at 484). “Where a

plain procedural bar is present and the district court is correct to invoke it to

dispose of the case, a reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petitioner should be allowed to

proceed further.” Slack, 529 U.S. at 484. Unless we grant a COA, we lack

jurisdiction to resolve the merits of a habeas appeal. Miller-El, 537 U.S. at 342.

      Mr. Sandoval’s § 2255 motion presents a situation “where a plain

procedural bar is present,” Slack, 529 U.S. at 484, and consequently, the district

court did not err in dismissing his motion. Section 2255 motions have a one-year

                                           4
limitations period. 28 U.S.C. § 2255(f)(1) (“A 1-year period of limitation shall

apply to a motion under this section. The limitation period shall run from . . . the

date on which the judgment of conviction becomes final.”). “A movant must

generally file a § 2255 motion within one year from the date [his] conviction

becomes final.” United States v. Valencia, 472 F.3d 761, 763 (10th Cir. 2006).

“In the context of the one-year limitation period for filing a § 2255 motion, a

criminal conviction becomes final when the Supreme Court affirms it on direct

review, denies certiorari, or (in the absence of a certiorari petition) the time for

filing a certiorari petition expires.” United States v. Prows, 448 F.3d 1223, 1227

(10th Cir. 2006). However, Mr. Sandoval did not file a direct appeal of his

conviction or sentence. “If the defendant does not file an appeal, the criminal

conviction becomes final upon the expiration of the time in which to take a direct

criminal appeal.” Id. at 1227–28. The district court entered judgment on Mr.

Sandoval’s conviction on April 25, 2007; therefore, under the version of the

Federal Rules of Appellate Procedure in effect prior to the 2009 Amendments,

Mr. Sandoval’s judgment became final, ten days later, excluding Saturdays,

Sundays, and legal holidays, on May 10, 2007. See Fed. R. App. P. 4(b)(1)(A)(i);

id. at 26(a)(2). 2 However, he did not file his § 2255 motion until over two years

      2
            The 2009 Amendments to the Federal Rules of Appellate Procedure
extended the time to appeal a final judgment in a criminal case from ten to
fourteen days and removed the provision that excluded intermediate Saturdays,
Sundays, and legal holidays from the count. See Fed. R. App. P. 4 advisory
                                                                           (continued...)

                                           5
later on July 13, 2009.

      While there are dates other than the date when the judgment of conviction

becomes final that conceivably could trigger the running of the one-year statute of

limitations for § 2255 motions, see 28 U.S.C. § 2255(f)(2-4), Mr. Sandoval has

failed to demonstrate that any of these alternative trigger dates apply to his case.

On appeal, in both his Opening Brief and his Application for COA, Mr. Sandoval

does not address the district court’s reasoning for dismissing his motion as

untimely. 3 Instead, Mr. Sandoval focuses on the substantive arguments he made


      2
          (...continued)
committee’s notes to 2009 Amendments (“The times set in the former rule at 10
days have been revised to 14 days.”); Fed. R. App. P. 26 advisory committee’s
note to 2009 Amendments (“Under new subdivision (a)(1), all deadlines stated in
days (no matter the length) are computed in the same way. The day of the event
that triggers the deadline is not counted. All other days—including intermediate
Saturdays, Sundays, and legal holidays—are counted, with only one exception: If
the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on
the next day that is not a Saturday, Sunday, or legal holiday.”).
      3
             Before the district court, Mr. Sandoval argued that his § 2255 motion
should not be dismissed as untimely because he did not have actual knowledge of
the one-year statute of limitations, the limitations period was unconstitutional,
and the interests of the Navajo Tribe required the district court to consider his
§ 2255 motion. None of these arguments are persuasive. First, ignorance of the
limitation period does not excuse an untimely motion. “[I]t is well established
that ignorance of the law, even for an incarcerated pro se prisoner, generally does
not excuse prompt filing.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir.
2000) (internal quotation marks omitted); accord Gibson v. Klinger, 232 F.3d
799, 808 (10th Cir. 2000). Second, contrary to Mr. Sandoval’s contention, the
limitation period does not violate the Constitution. See United States v. Keebler,
49 F. App’x 267, 269 (10th Cir. 2002) (explaining that the one-year limitation on
filing a § 2255 motion does not violate the Suspension Clause); accord Triestman
v. United States, 124 F.3d 361, 376 (2d Cir. 1997) (“‘[T]he remedy afforded by
                                                                         (continued...)

                                          6
in his original § 2255 petition, specifically that his counsel was constitutionally

ineffective because he failed to file a direct appeal as requested and because he

failed to inform the district court that Mr. Sandoval needed an interpreter for the

plea proceedings. 4 Therefore, Mr. Sandoval has failed to show “that jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack, 529 U.S. at 484. Consequently, we deny his request

for a COA.

      Finally, we agree with the district court that Mr. Sandoval is not entitled to

proceed IFP because he has failed to identify ‘“the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.’” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812-13 (10th Cir.


      3
          (...continued)
§ 2255 is not rendered inadequate or ineffective merely because an individual has
been unable to obtain relief under that provision, or because an individual is
procedurally barred from filing a § 2255 motion.”’ (quoting In re Vial, 115 F.3d
1192, 1194 n.5 (4th Cir. 1997))); cf. Miller v. Marr, 141 F.3d 976, 977-78 (10th
Cir. 1998) (holding that the one-year limitation on filing a § 2254 petition did not
violate petitioner’s rights under Suspension Clause). Finally, Mr. Sandoval’s
argument concerning the Navajo Tribe has no relevance to whether or not his
motion was timely filed. And we have repeatedly held that “equitable [tolling] is
only available when an inmate diligently pursues his claims and demonstrates that
the failure to timely file was caused by extraordinary circumstances beyond his
control.” Marsh, 223 F.3d at 1220. Mr. Sandoval made no attempt to show that
his delay in filing his § 2255 motion was beyond his control, nor that he had been
diligently pursuing his claims.
      4
            In support of these arguments, Mr. Sandoval has also filed a motion
to supplement the record before us. Because we agree with the district court that
his § 2255 petition is time-barred, we deny his motion to supplement the record as
moot.

                                          7
1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991)).

      For the foregoing reasons, we DENY Mr. Sandoval’s request for a COA

and DISMISS the appeal. We also DENY Mr. Sandoval’s motion to proceed IFP.



                                     ENTERED FOR THE COURT


                                     Jerome A. Holmes
                                     Circuit Judge




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