                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 2 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,

    v.                                                   No. 00-6031
                                                   (D.C. No. 99-CV-1262-W)
    MICHAEL EUGENE STUTSON,                              (W.D. Okla.)
    a/k/a Mike Stutson, a/k/a Big Mike,

                  Defendant-Appellant.


                              ORDER AND JUDGMENT          *




Before BRORBY , KELLY , 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.




*
      This order and judgment is not binding precedent, except under the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.
       Defendant Michael Eugene Stutson appeals the district court’s denial of his

motion to vacate, set aside, or correct his sentence, brought pursuant to 28 U.S.C.

§ 2255. Because defendant has not made a substantial showing that the district

court’s procedural ruling was erroneous, we must dismiss this appeal.

       In October 1993, defendant pled guilty to one count of conspiracy to

distribute cocaine, and in February 1994, he was sentenced to 235 months’

incarceration. His direct appeal was denied on August 15, 1995. On August 25,

1999, defendant filed this habeas motion which the district court denied as

untimely. Defendant appeals, arguing that the statute of limitations should have

been equitably tolled and that he was entitled to a hearing on the issue.

       On April 24, 1996, Congress enacted the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), which substantially amended the process of

applying for habeas relief. Under AEDPA, a prisoner must obtain a certificate of

appealability as a prerequisite to appellate review, 28 U.S.C. § 2253(c)(2), by

making a substantial showing of the denial of a constitutional right. Where, as

here, the district court dismisses the habeas motion on a procedural ground, the

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

the district court was correct in its procedural ruling,” and “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of

a constitutional right.”   Slack v. McDaniel , 529 U.S. 473, 120 S. Ct. 1595, 1604


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(2000). Each of these steps is “part of a threshold inquiry” that must be satisfied

before the court of appeals may hear the appeal.    Id.

       We examine first whether defendant has made a substantial showing that

the district court erred in dismissing his habeas motion as untimely. AEDPA

imposed a one-year limitation on a prisoner’s right to apply for habeas relief,

running from the date the prisoner’s conviction became final. In cases where

a prisoner’s conviction became final before AEDPA’s enactment, the courts

granted a one-year grace period, until April 24, 1997, within which such prisoners

had to file their habeas petitions.   United States v. Simmonds , 111 F.3d 737

(10th Cir. 1997). Here, because defendant’s conviction was final before the

enactment of AEDPA, he had until April 24, 1997, to file his habeas motion.

Because he waited until August 25, 1999, to file his motion, it was untimely.

       Defendant argues that he is entitled to equitable tolling, however, based

on his attorney’s failure to relinquish the court record or answer his letters.

In support, defendant presents copies of letters written to his trial attorney in

July 1998 and August 1998, a letter written to the court in November 1998, and

a sentencing transcript request in December 1998. He also presents an affidavit

stating that he did not receive some of the necessary material until August 1999,

when his mother found some misplaced legal materials.




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       Although AEDPA’s limitations periods are subject to equitable tolling,

such relief is limited to “rare and exceptional circumstances.”     Gibson v. Klinger ,

232 F.3d 799, 808 (10th Cir. 2000) (quotation omitted). The circumstances

presented by defendant do not show the due diligence necessary to justify

equitable tolling.   See id. Defendant has not shown why he did not attempt to

obtain his legal materials during the twenty-seven month period between the

resolution of his direct appeal and his first letter to his former attorney, and he

has not demonstrated that he filed his motion diligently after receiving the

sentencing hearing transcript. He also does not explain why his mother’s loss of

his legal materials is anything other than excusable neglect, which does not justify

equitable tolling.   See id. Further, because defendant’s evidence on its face

showed he was not entitled equitable relief, the district court was not required to

hold an evidentiary hearing.     See United States v. Marr , 856 F.2d 1471, 1472

(10th Cir. 1988) (holding an evidentiary hearing is not required on a § 2255

motion when the record “conclusively shows the prisoner is entitled to no relief”).

       As defendant has not made a substantial showing that the district court

erred in its procedural ruling, we need not examine whether his underlying issues

raise substantial constitutional questions.     Slack , 120 S. Ct. at 1604 (encouraging

appellate court to resolve procedural question first). Defendant’s motion for

a certificate of appealability is DENIED, and the appeal is DISMISSED.


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      Entered for the Court



      Paul J. Kelly, Jr.
      Circuit Judge




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