                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JUN 18 1998
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                         No. 97-6277
                                                        (D.C. No. 97-CV-715)
 RAYMOND EUGENE MOSS, JR., also                             (W.D. Okla.)
 known as - Sloss,

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

       Raymond Eugene Moss Jr. appeals the district court’s order dismissing his motion

to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. We deny a certificate of


       *
          This order and judgment is not binding precedent, except under the doctrines of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.
appealability and dismiss the appeal.

       Moss’ convictions for aiding and abetting distribution of cocaine base and using a

telephone to facilitate distribution of cocaine base were affirmed on August 15, 1995, in

United States v. Moss, No. 94-6075 (10th Cir. 1995), and his convictions became final

upon expiration of the time for filing a petition for certiorari in the Supreme Court. See

Griffin v. Kentucky, 479 U.S. 314, 321 n.6 (1987); United States v. Cuch, 79 F.3d 987,

991 n.9 (10th Cir. 1996). Moss signed his § 2255 motion on April 23, 1997, but filed it

by delivery to prison authorities for forwarding to the clerk of the district court on April

24, 1997. See Houston v. Lack, 487 U.S. 266 (1988). The district court dismissed the

motion as untimely under United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997),

because it was not filed within a year of the April 24, 1996, effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

       Moss contends application of the Simmonds rule is impermissibly retroactive and

violates the constitutional prohibition against ex post facto laws. Before the AEDPA, a

federal prisoner could bring a § 2255 action at any time. The AEDPA amended § 2255 to

impose a time limit precluding prisoners from bringing § 2255 actions more than one year

after their convictions became final. In Simmonds, we concluded application of the one-

year limitation period to bar § 2255 actions by prisoners whose convictions became final

before the AEDPA took effect would be impermissibly retroactive. To avoid

impermissible retroactivity, we concluded such prisoners must be given a reasonable


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amount of time after the effective date of the statute to bring their actions. We further

concluded the statutory one-year period was a reasonable time and held “prisoners whose

convictions became final on or before April 24, 1996 must file their § 2255 motions

before April 24, 1997.” 111 F.3d at 746.

       An ex post facto law is one that retroactively alters the definition of a crime or

increases the punishment for criminal conduct. Lynce v. Mathis, 117 S. Ct. 891, 896

(1997). Simmonds does neither.

       We conclude Moss has failed to make a substantial showing of the denial of a

constitutional right required for issuance of a certificate of appealability under 28 U.S.C.

§ 2253(c)(2). We DENY a certificate of appealability and DISMISS the appeal. The

mandate shall issue forthwith.

                                           Entered for the Court

                                           Mary Beck Briscoe
                                           Circuit Judge




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