                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                     PUBLISH
                                                                          APR 14 1997
                     UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                               Clerk
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 96-3287

 CHRISTOPHER SIMMONDS,

          Defendant-Appellant.


                    Appeal from the United States District Court
                               for the District of Kan.
                              (D.C. No. 96-3386-RDR)


Submitted on the briefs: *

Jackie N. Williams, United States Attorney, District of Kansas; Tanya J.
Treadway, Assistant United States Attorney, District of Kansas; David S. Kris,
Department of Justice, Washington, D.C., for Plaintiff-Appellee.

Michael G. Katz, Federal Public Defender; James P. Moran, Assistant Federal
Public Defender, Denver, Colorado, for Defendant-Appellant.


Before BRORBY, HENRY and MURPHY, 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. The
case is therefore ordered submitted without oral argument.
BRORBY, Circuit Judge.



      Mr. Simmonds, a federal prisoner, appeals the United States District Court

for the District of Kansas' denial of his motion for post-conviction relief pursuant

to 28 U.S.C. § 2255. On appeal, we consider four issues: 1) whether this court

should rule on a prisoner's application for a certificate of appealability pursuant to

28 U.S.C. § 2253(c) before requiring the government to file a brief on the appeal's

merits; 2) whether 28 U.S.C. § 2254 habeas corpus 1 and 28 U.S.C. § 2255

proceedings are "civil actions" as contemplated by 28 U.S.C. § 1915 of the Prison

Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26,

1996) 2; 3) whether the one-year time limitation promulgated by the Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(Apr. 24, 1996), for filing motions under 28 U.S.C. § 2255 applies to this motion;


      1
        28 U.S.C. § 2254 and 28 U.S.C. § 2255 are both commonly referred to as
habeas corpus petitions. See Santana v. United States, 98 F.3d 752, 753 n.1 (3d
Cir. 1996). However, as this court has held, the two are different proceedings and
should be treated accordingly. United States v. Cook, 997 F.2d 1312, 1316 n.3
(10th Cir. 1997). Therefore, use of the term "habeas corpus" as used in this
opinion refers to § 2254 proceedings only.

      2
        For the purposes of this issue only, we have consolidated for
consideration and decision Williams v. Henderson, No. 96-1330 (Order and
Judgment, Apr. 14, 1997), which involves a 28 U.S.C. § 2254 habeas corpus
proceeding.


                                         -2-
and 4) whether Mr. Simmonds is entitled to a certificate of appealability pursuant

to 28 U.S.C. § 2253(c).



I. FACTS

      In 1990, Mr. Simmonds was convicted on two counts of assaulting a

corrections officer with a dangerous weapon, in violation of 18 U.S.C.

§ 111(a)(1), (b), and one count of possessing a prohibited weapon, in violation of

18 U.S.C. § 1791(a)(2). On direct appeal, Mr. Simmonds challenged his

conviction on the ground the district court committed plain error in failing to

instruct the jury on a diminished capacity defense. This court affirmed Mr.

Simmonds' conviction in United States v. Simmonds, 931 F.2d 685, 689 (10th

Cir.), cert. denied, 502 U.S. 840 (1991). In 1996, Mr. Simmonds filed a pro se

motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence,

arguing his counsel was constitutionally ineffective for failing to request jury

instructions on intent and diminished capacity. Mr. Simmonds also filed an

application to proceed in forma pauperis.



      The district court granted the application to proceed in forma pauperis, but

denied Mr. Simmonds' motion to vacate without a hearing, concluding the motion

was frivolous and untimely under the one-year time limitation in the Antiterrorism


                                         -3-
and Effective Death Penalty Act. 28 U.S.C. § 2255. Mr. Simmonds filed a notice

of appeal, a motion to proceed in forma pauperis, and an application for a

certificate of appealability. The district court issued an order denying the

certificate of appealability pursuant to 28 U.S.C. § 2253(c). The government

filed a motion requesting this court rule on Mr. Simmonds' application for a

certificate of appealability prior to requiring the government to file a brief on the

appeal's merits. This court took the government's motion under advisement and

ordered the government to brief the sequencing issue in its brief addressing the

appeal's merits.



II. ISSUES

      A. Sequencing of Briefs

      We first address whether the circuit court should rule on the prisoner's

application for a certificate of appealability under 28 U.S.C. § 2253(c) prior to

requiring the government to file a brief addressing the appeal's merits. As

amended by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C.

§ 2253(c) provides a prisoner may not appeal a 28 U.S.C. § 2255 motion or final

order in a habeas corpus proceeding before a "circuit justice or judge issues a

certificate of appealability." 28 U.S.C. § 2253(c)(1)(A), (B). This language

seems to indicate certificates of appealability should be issued, if at all, only by a


                                          -4-
circuit justice or judge. 3 Id. The language of this amended statute seems to

conflict with Fed. R. App. P. 22(b), which provides the district court judge who

entered the judgment "shall either issue a certificate of appealability or state the

reasons why such a certificate should not issue"; under Rule 22(b), only after the

district court has denied the certificate will the circuit court consider whether the

certificate should issue. Id. While the specific language of Fed. R. App. P. 22(b)

seems to deal only with habeas corpus proceedings, and not 28 U.S.C. § 2255

motions, the caption of the rule indicates its application to § 2255 motions. See

Fed. R. App. P. 22(b) (rule captioned "Habeas Corpus and Section 2255

Proceedings"). Consequently, the statute and rule created confusion as to the

district court's role in issuing certificates of appealability.




      3
         Mr. Simmonds states the certificate of appealability requirements of 28
U.S.C. § 2253(c) are inapplicable to him citing United States v. Lopez, 100 F.3d
113 (10th Cir. 1996). We can only assume from his reliance on Lopez that Mr.
Simmonds is attempting to argue this court would be giving 28 U.S.C. § 2253 an
impermissible retroactive effect by requiring Mr. Simmonds to obtain a certificate
of appealability. See Lopez, 100 F.3d at 117. However, in Lopez, the prisoner
had filed his 28 U.S.C. § 2255 motion prior to the effective date of the 28 U.S.C.
§ 2253(c) amendments. Id. at 116. Here, Mr. Simmonds filed his 28 U.S.C. §
2255 motion after the amendment's effective date. Consequently, because Mr.
Simmonds had notice of 28 U.S.C. § 2253's requirements when he filed his
motion, and because the requirements of 28 U.S.C. § 2253(c) govern procedural
conduct occurring after the amendment's effective date, no retroactivity problem
exists. See Landgraf v. USI Film Products, 511 U.S. 244, 275 (1994).


                                           -5-
      In an attempt to resolve the apparent conflict, this court issued an

emergency order "direct[ing] the district courts to consider the propriety of

issuing certificates of appealability in the first instance." Emergency General

Order, In re Procedures Regarding the Prison Litigation Reform Act and the

Antiterrorist and Effective Death Penalty Act, No. 96-41 (10th Cir. Oct. 1, 1996). 4

Additionally, the order directs if a certificate of appealability is denied by the

district court, "petitioner-appellants will be required to brief any request for a

certificate of appealability in this court and address the merits of their appeals at

the same time. Respondent-appellees shall not file a brief until requested to do so

by this court." Id. (citation omitted).



      We agree with the government that the circuit court should, in most cases,

rule on the certificate of appealability prior to requiring the government's merit

brief. This conclusion is supported not only by the plain language of the

Emergency Order, but also by the legislative intent of the Antiterrorism and

Effective Death Penalty Act. Congress enacted the certificate of appealability

provisions in an attempt to curb repetitive filings and to mitigate the burden on



      4
        In Houchon v. Zavaras, 107 F.3d 1465, ____, 1997 WL 81157, *2-4 (Feb.
27, 1997), this court held 28 U.S.C. § 2253(c) does not foreclose district judges
from issuing certificates of appealability in habeas corpus petitions.


                                          -6-
taxpayers resulting from such abuses. See 141 Cong. Rec. H1400-02 (daily ed.

Feb. 7, 1995) (statement of Rep. Stenholm). Requiring the government to invest

time, money, and energy into briefing the merits of an appeal before the circuit

court has even ruled on whether it will exercise jurisdiction under 28 U.S.C.

§ 2253(c), is contrary to the certificate of appealability's intended purpose. As a

result, given the plain language of the Emergency Order, coupled with the intent

of 28 U.S.C. § 2253(c), we hold the circuit court should rule on whether it will

issue a certificate of appealability before requiring the government's merit brief.



      However, as mandated by the permissive language in the emergency order,

this holding leaves ajar the door of discretion vested in the circuit court; the

circuit court may still request the government's merit brief before ruling on a

certificate of appealability, especially in those cases the court finds particularly

difficult or complex such that a merit brief from the government would

significantly aid its decision. Furthermore, as directed in Fed. R. App. P. 22(b),

when the district court denies a certificate of appealability, it should provide an

aid to the circuit court in evaluating a petitioner's request for a certificate by

stating "the reasons why such a certificate should not issue." Nevertheless,

barring any unique or difficult cases, the circuit court should rule on a certificate




                                           -7-
of appealability before requiring the government's brief addressing the appeal's

merits.



      B. Interpretation of "civil action" in 28 U.S.C. § 1915.

      As stated, for purposes of this issue only, we consolidate for consideration

and decision Williams v. Henderson, No. 96-1330 (Order and Judgment, Apr. 14,

1997); consequently, we consider whether in forma pauperis 28 U.S.C. § 2254

habeas corpus (the state prisoner's vehicle for post-conviction relief) or 28 U.S.C.

§ 2255 proceedings (the federal prisoner's version of habeas corpus) are "civil

actions" for purposes of 28 U.S.C. § 1915. We conclude, as at least five other

circuits have, they are not. Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997)

(habeas corpus proceedings are not "civil actions" for purposes of 28 U.S.C.

§ 1915); United States v. Cole, 101 F.3d 1076, 1077 (5th Cir. 1996) (28 U.S.C.

§ 2255 proceedings are not "civil actions" for purposes of 28 U.S.C. § 1915);

Santana, 98 F.3d at 754-55 (same); Martin v. United States, 96 F.3d 853, 855 (7th

Cir. 1996) (neither habeas nor 28 U.S.C. § 2255 proceedings are "civil actions"

for purposes of 28 U.S.C. § 1915); Reyes v. Keane, 90 F.3d 676, 678 (2d Cir.




                                         -8-
1996) (habeas corpus proceedings are not "civil actions" for purposes of 28

U.S.C. § 1915). 5



      Pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform

Act, prisoners proceeding in forma pauperis who bring a "civil action" or appeal a

judgment in a civil action are required to pay all filing fees 6. The Prison



      5
         The United States government concedes § 2255 proceedings are not "civil
actions" for purposes of 28 U.S.C. § 1915.

      6
          28 U.S.C. § 1915(a)(2) provides:

      A prisoner seeking to bring a civil action or appeal a judgment in a
      civil action or proceeding without prepayment of fees or security
      therefor, in addition to filing the affidavit filed under paragraph (1)
      shall submit a certified copy of the trust fund account statement (or
      institutional equivalent) for the prisoner for the 6-month period
      immediately preceding the filing of the complaint or notice of appeal,
      obtained from the appropriate official of each prison at which the
      prisoner is or was confined.

28 U.S.C. § 1915(b)(1) provides:

      Notwithstanding subsection (a), if a prisoner brings a civil action or
      files an appeal in forma pauperis, the prisoner shall be required to
      pay the full amount of a filing fee. The court shall assess and, when
      funds exist, collect, as a partial payment of any court fees required by
      law, an initial partial filing fee of 20 percent of the greater of --
             (A) the average monthly deposits to the prisoner's account; or
             (B) the average monthly balance in the prisoner's account for
             the 6-month period immediately preceding the filing of the
             complaint or notice of appeal.


                                         -9-
Litigation Reform Act does not define "civil action" for purposes of in forma

pauperis litigants and fails to expressly exclude habeas and § 2255 proceedings

from its scope. When interpreting a statutory term, a reviewing court must

determine whether the language is ambiguous or whether it has a plain meaning;

if the statutory language is ambiguous, a court can then resort to legislative

history as an aid to interpretation. United States v. Floyd, 81 F.3d 1517, 1523

(10th Cir.), cert. denied, 117 S. Ct. 144 (1996); United States v. Roberts, 88 F.3d

872, 877 (10th Cir. 1996).



      Unlike many terms that are easily definable, "civil action" is a term used in

many statutes, and its meaning depends on its context within the applicable

legislation. Green v. Nottingham, 90 F.3d 415, 417 (10th Cir. 1996). "'The

application of each statute or rule using the words "civil action" must be decided

on the basis of its language, its history, and its purpose.'" Id. (quoting Payden v.

United States (In re Grand Jury Subpoena Duces Tecum), 775 F.2d 499, 503 (2d

Cir. 1985)). Therefore, we consider the meaning of the phrase "civil action" only

as applied in the Prison Litigation Reform Act's context.



      Habeas corpus and 28 U.S.C. § 2255 proceedings are strange and slippery

creatures. Certainly, habeas corpus and § 2255 are different proceedings and


                                         -10-
should be treated as such in most contexts. The two proceedings are governed by

different statutes and serve different policies. See Rules Governing Section 2255

Proceedings, Rule 1, and accompanying Advisory Committee Note. One striking

consistency between the two proceedings, however, is the courts' continual

inconsistent treatment of those proceedings.



      For instance, for some procedural purposes, habeas proceedings are

considered "civil." See, e.g., Browder v. Director, Illinois Dept. of Corrections,

434 U.S. 257, 269 (1978) ("It is well settled that habeas corpus is a civil

proceeding."); Ex parte Tom Tong, 108 U.S. 556, 559-60 (1883) (habeas corpus

review is a civil proceeding because its purpose is to enforce civil rights). Yet

for other purposes, they are not. See, e.g., Harris v. Nelson, 394 U.S. 286, 293-94

(1969) ("Essentially, the proceeding is unique. Habeas corpus practice in the

federal courts has conformed with civil practice only in a general sense."); Ewing

v. Rodgers, 826 F.2d 967, 971 (10th Cir. 1987) (holding habeas corpus is not a

"civil action" for purposes of the Equal Access to Justice Act provision for award

of attorney fees to prevailing party).



      The same inconsistency exists in the treatment of § 2255 proceedings. In

United States v. Gutierrez, 839 F.2d 648, 651 (10th Cir. 1988), this court held the


                                         -11-
Federal Rules of Civil Procedure apply to a motion to dismiss a § 2255 motion.

However, in Cook, 997 F.2d 1312, this court relied on the Rules Governing

Section 2255 Proceedings to determine a § 2255 proceeding is a continuation of

the original criminal matter such that it is inappropriate for a district court to

dismiss such motions as frivolous under 28 U.S.C. § 1915(d). 7



      Further, while the Rules Governing § 2255 proceedings recognize the

general concept that a § 2255 proceeding is a further step in the original criminal

case, see Rules Governing Section 2255 Proceedings, Rules 1, 3, and

accompanying Advisory Committee Notes, in United States v. Frady, 456 U.S.

152, 167 (1982), the Court refused to apply the "plain error" standard of Fed. R.

Crim. P. 52(b) to § 2255 proceedings. Consequently, like habeas proceedings,



      7
         In light of Congress' sweeping changes to the statutes surrounding
prisoner litigation as reflected in the Antiterrorism and Effective Death Penalty
Act and the Prison Litigation Reform Act, the applicability and/or continuing
validity of the Rules Governing § 2254 and § 2255 is uncertain.

       Cook also relied on the Rules Governing Section 2255 Proceedings to hold
because § 2255 proceedings are a continuation to the criminal matter, filing fees
or leave to proceed in forma pauperis is not required. However, even assuming
the continuing validity of the Rules Governing § 2255 Proceedings, we note our
decision here is consistent with that in Cook, 997 F.2d at 1315-16, 1319. In fact,
our decision here flows logically from Cook. By deciding a § 2255 proceeding is
not a "civil action" for purposes of 28 U.S.C. § 1915's mandatory fee provisions,
we are not precluding § 2255's criminal nature in this or other contexts.


                                          -12-
§ 2255 proceedings remain beyond the ambit of a traditional "civil" or "criminal"

characterization in all contexts.



      The precise nature of § 2255 proceedings and § 2254 proceedings remains

highly dependent on the proceedings' context. The fact that the nature of habeas

and § 2255 proceedings is one of consistent inconsistency, however, does not

trouble us, for in some instances, "[a] foolish consistency is the hobgoblin of little

minds, adored by little statesmen and philosophers and divines." Emerson, Self

Reliance, in Essays: First Series (1841).



      Because neither habeas nor § 2255 proceedings can be uniformly

characterized and because the context of the issue before us is narrow and well

defined -- the scope of the Prison Litigation Reform Act fee provisions -- we find

it analytically useful to consider habeas and § 2255 proceedings together. This is

not to say, however, that we intend to group two animals of different genera into

the same species outside this narrow context. Rather, today, we consider only

whether the term "civil action" as used in the Prison Litigation Reform Act

extends to habeas and § 2255 actions. This analytical framework finds support in

our sister circuits' treatment of the identical issue. See, e.g., Santana, 98 F.3d at

753-56; Martin, 96 F.3d at 855-56.


                                          -13-
      Indeed, it is because the nature of habeas and § 2255 actions is imprecise

and contextually dependent that Congress' failure to define the term "civil action"

in the context of the Prison Litigation Reform Act renders the statute ambiguous.

Therefore, we consider the statute's intent and purpose to aid in our interpretation.

See Santana, 98 F.3d at 755-56; see also, Ewing, 826 F.2d at 970.



      We agree with the other circuits that have considered the issue that the

legislative history and purpose of the newly amended 28 U.S.C. § 1915 show the

filing fee requirements of that statute were not intended to extend to habeas or §

2255 proceedings. The main purpose of the Prison Litigation Reform Act was to

curtail abusive prison-condition litigation. See, e.g., 141 Cong. Rec. S7498-01

(daily ed. May 25, 1995) (statement of Sen. Dole) (the Prison Litigation Reform

Act will limit prisoner-condition lawsuits "claiming such grievances as

insufficient storage locker space, being prohibited from attending a wedding

anniversary party, and yes, being served creamy peanut butter instead of the

chunky variety they had ordered."). Additionally, 28 U.S.C. § 1915 was amended

to provide an "economic disincentive" to abusive litigation. See id. However,

unlike the filing fee for a civil action, which is $120.00, the filing fee for habeas

actions is $5.00, an amount Congress' amendments failed to increase. 28 U.S.C.

§ 1914(a); see also Santana, 98 F.3d at 756; Reyes, 90 F.3d at 678.


                                          -14-
      Furthermore, the Antiterrorism and Effective Death Penalty Act, enacted

two days before the Prison Litigation Reform Act, deals extensively with

successive habeas and § 2255 actions; had Congress wanted to reform the fee

provisions for habeas and § 2255 actions, it would have been appropriate to do so

there. See Cole, 101 F.3d at 1077; Santana, 98 F.3d at 755; Martin, 96 F.3d at

855; Reyes, 90 F.3d at 678. Finally, newly added 28 U.S.C. § 1915(g) limits a

prisoner proceeding in forma pauperis to three frivolous "civil action" suits or

appeals in a lifetime unless the prisoner is under "imminent danger of serious

physical injury." If "civil action" includes habeas and § 2255 proceedings in the

context of 28 U.S.C. § 1915, conceivably, a prisoner who had brought three

frivolous prisoner-condition lawsuits would be prohibited from bringing a first

habeas or § 2255 action. Certainly, such a result "would be contrary to a long

tradition of ready access of prisoners to federal habeas corpus." Martin, 96 F.3d

at 855-56. For the above reasons, we conclude the intent and purpose of the

Prison Litigation Reform Act shows the phrase "civil action" in 28 U.S.C. § 1915

was not meant to apply to habeas corpus and 28 U.S.C. § 2255 proceedings.



      Our decision in Green does not require a different result. 90 F.3d at 418.

In Green, this circuit determined a petition for writ of mandamus, filed in the

course of a habeas proceeding, was a "civil action" under 28 U.S.C. § 1915 such


                                        -15-
that it was subject to § 1915's filing fee provisions. Id. A careful reader of

Green may conclude any "complaint" or "lawsuit" filed by a prisoner is subject to

28 U.S.C. § 1915's fee provisions. Id. However, such a reading would be in

error. In Green, the prisoner sought not only to hasten his habeas petition, but

also sought to have this court order the district court to adopt new rules and

procedures in order to expedite its habeas review process. Id. at 416. By the time

Green was filed, most of Mr. Green's complaints regarding his habeas petition

were moot such that Green was decided in a context closely resembling a

prisoner-condition lawsuit. Id. at 416 n.1.



      Furthermore, in Green, we were specifically concerned with prisoners using

writs of mandamus to subvert § 1915's intent to curtail abusive litigation;

"[a]llowing prisoners to continue filing actions as they had before enactment of

the amendments, merely by framing pleadings as petitions for mandamus would

allow a loophole Congress surely did not intend in its stated goal of

'discourag[ing] frivolous and abusive prison lawsuits.'" Id. at 418. Here, we are

not faced with the same concern. By concluding "civil action" does not include

habeas or § 2255 actions, we are not, contrary to Congress' intent, creating a back

door through which prison-condition litigation is admitted without first requiring

a prisoner to satisfy 28 U.S.C. § 1915's fee provisions. Rather, we leave ready


                                         -16-
access of prisoners to habeas and § 2255 remedies Congress has not intended to

restrict through the fee provisions of 28 U.S.C. § 1915.



      Additionally, we do not believe the language of 28 U.S.C. § 1915(b)(1)

requires a prisoner to pay the full amount of a filing fee for all appeals, regardless

of the appeal's nature. While the language of § 1915(b)(1) refers to "a civil action

or ... an appeal," we agree with the Seventh and Second Circuits that read in

context, the word "appeal" means an appeal of a civil action. Martin, 96 F.3d at

854; Reyes, 90 F.3d at 678. Reading 28 U.S.C. § 1915(b)(1)(B) and § 1915(a)(2)

together makes plain only a prisoner's filing of a "civil action or appeal ... in a

civil action" triggers the fee provisions of § 1915(b)(1). Therefore, we hold

neither habeas corpus or 28 U.S.C. § 2255 proceedings, nor appeals of those

proceedings are "civil actions" for purposes of 28 U.S.C. § 1915.



      C. Amended Time-Limit Provision of 28 U.S.C. § 2255

      The Antiterrorism and Effective Death Penalty Act amended 28 U.S.C.

§ 2255 by adding a time-limit provision for § 2255 motions. 8 As amended, 28


      8
          Specifically, 28 U.S.C. § 2255 provides:

            A 1-year period of limitation shall apply to a motion under this
      section. The limitation period shall run from the latest of --
            (1) the date on which the judgment of conviction becomes

                                          -17-
U.S.C. § 2255 precludes a prisoner from filing a § 2255 motion more than one

year after the conviction becomes final. 9 28 U.S.C. § 2255(1). Prior to this

amendment, "a party could bring a § 2255 motion at any time." Lopez, 100 F.3d

at 116. Mr. Simmonds' conviction became "final" after the Supreme Court denied

certiorari on October 7, 1991. United States v. Simmonds, 931 F.2d 685 (10th

Cir.), cert. denied, 520 U.S. 840 (1991); see United States v. Cuch, 79 F.3d 987,

991 n.9 (10th Cir.) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)) (a

final conviction is one in which the Supreme Court has denied a petition for

certiorari), cert. denied, 117 S. Ct. 384 (1996). Therefore, literal application of

the amended statute would bar Mr. Simmonds' § 2255 motion as of October 7,




             final;
             (2) the date on which the impediment to making a motion
             created by governmental action in violation of the Constitution
             or laws of the United States is removed, if the movant was
             prevented from making a motion by such governmental action;
             (3) 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; or
             (4) the date on which the fact supporting the claim or claims
             presented could have been discovered through the exercise of
             due diligence.
      9
        Mr. Simmonds does not appear to rely on any of the three remaining
subsections of 28 U.S.C. § 2255; therefore, we limit our analysis to 28 U.S.C.
§ 2255(1).

                                         -18-
1992, more than three years prior to the amended statute's effective date. 10 In

Lopez, we held the amended one-year limitation period does not apply to § 2255

motions filed before April 24, 1996. 100 F.3d at 116-17. However, because Mr.

Simmonds filed his motion well after that date, we now consider whether

application of the new time period limitation to Mr. Simmonds' motion would be

impermissibly retroactive.



      "When a case implicates a federal statute enacted after the events giving

rise to the suit," absent clear Congressional intent to the contrary, a presumption

against retroactive legislation should apply. Landgraf, 511 U.S. at 280. The

presumption against retroactivity is "deeply rooted in our jurisprudence, and

embodies a legal doctrine centuries older than our Republic." Id. at 265.

Retroactivity concerns are guided by "considerations of fair notice, reasonable

reliance, and settled expectations." Id. at 270.



      Generally, retroactivity concerns do not bar a changed limitation period's

application to a suit filed after the amendment's effective date. See, e.g., Forest


      10
           Because the time limit in 28 U.S.C. § 2255 has no express effective date
provision, the effective date is April 24, 1996, the day the President signed the
bill into law. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991);
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).


                                         -19-
v. United States Postal Serv., 97 F.3d 137, 139-40 (6th Cir. 1996); Vernon v.

Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 890 (2d Cir. 1995). However, a

new time limitation cannot be so unfairly applied to bar a suit before the claimant

has had a reasonable opportunity to bring it. Indeed, the Supreme Court has

explained:

      "It may be properly conceded that all statute of limitations must
      proceed on the idea that the party has full opportunity afforded him
      to try his right in the courts. A statute could not bar the existing
      rights of claimants without affording this opportunity; if it should
      attempt to do so, it would not be a statute of limitations, but an
      unlawful attempt to extinguish rights arbitrarily, whatever might be
      the purport of its provisions. It is essential that such statutes allow a
      reasonable time after they take effect for the commencement of suits
      upon existing causes of action ...."


Texaco, Inc. v. Short, 454 U.S. 516, 527 n.21 (1982) (quoting Wilson v.

Iseminger, 185 U.S. 55, 62-63 (1902)). See also, Derstein v. Van Buren, 828 F.2d

653, 655 (10th Cir. 1987) (refusing to retroactively apply new limitations period

where new time period had already expired); Hanner v. Mississippi, 833 F.2d 55,

57 (5th Cir. 1987) (shortened limitation period barring pre-accrued claims must

first provide plaintiffs with a "reasonable time" to file); Anton v. Lehpamer, 787

F.2d 1141, 1146 (7th Cir. 1986) (allowing two-year grace period to avoid unfair

application of new limitations period).




                                          -20-
      Applying the amended statute of limitations to Mr. Simmonds' § 2255

motion would be "entirely unfair and a severe instance of retroactivity." Reyes,

90 F.3d at 679 (holding new time period of 28 U.S.C. § 2244(d) inapplicable to

pending habeas petition where period ended before amendment's effective date);

See also, Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), cert. granted on

other grounds, 117 S. Ct. 726, (1997). Prior to the amended 28 U.S.C. § 2255's

effective date, Mr. Simmonds had every right to bring, and every fair expectation

to believe a court would entertain his 28 U.S.C. § 2255 motion. Applying the

new time limitation to his claim would mean that on the day of April 24, 1996,

without prior notice or opportunity to act, Congress stripped Mr. Simmonds'

rights and fair expectations as of three years prior to that date. This we cannot

allow. A statute cannot retroactively bar a prisoner from his or her ability to have

a court consider the propriety of a § 2255 motion without first having a

reasonable time to bring the claim; additionally, there is no indication Congress

intended to foreclose prisoners who had no prior notice of the new limitations

period from bringing their § 2255 motions.



      Therefore, we hold application of the new time period to Mr. Simmonds'

§ 2255 motion without first affording him a reasonable time to bring his claim

impermissibly retroactive. Furthermore, we hold the one-year limitations period


                                         -21-
reflected in the amended 28 U.S.C. § 2255 is also a reasonable time for prisoners

to bring § 2255 motions whose convictions became final before the Antiterrorism

and Effective Death Penalty Act took effect. Accordingly, prisoners whose

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

motions before April 24, 1997. See Lindh, 96 F.3d at 866 (the time period

imposed by the Antiterrorism and Effective Death Penalty Act is "short enough

that the 'reasonable time' after April 24, 1996, and the one-year statutory period

coalesce; reliance interests lead us to conclude that no collateral attack filed by

April 23, 1997, may be dismissed under [28 U.S.C.] § 2244(d) and ... 28 U.S.C.

§ 2255."). Consequently, because Mr. Simmonds filed his § 2255 motion prior to

April 23, 1997, we hold the motion was timely. 11



      D. Certificate of Appealability

      The Antiterrorism and Effective Death Penalty Act requires a certificate of

appealability be granted before a prisoner may appeal a § 2255 motion's denial.

28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only if "the

applicant has made a substantial showing of the denial of a constitutional right."




      11
        The government concedes the new time limit provision of 28 U.S.C.
§ 2255 does not apply to this case.


                                         -22-
28 U.S.C. § 2253(c)(2). We hold Simmonds has failed to satisfy this burden and,

accordingly, we deny his certificate of appealability.



      Mr. Simmonds claims he was unconstitutionally denied effective assistance

of counsel during his original criminal trial, and that he was entitled to an

evidentiary hearing in the district court to support the claim. To satisfy a claim of

ineffective assistance, a claimant must show both that counsel's performance fell

below professional norms, and that the deficient performance was prejudicial to

his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Romero v.

Tansy, 46 F.3d 1024, 1029 (10th Cir.), cert. denied, 115 S. Ct. 2591 (1995).

Specifically, Mr. Simmonds argues his trial counsel was ineffective for failing to

request a jury instruction on diminished capacity. During his direct appeal, Mr.

Simmonds argued the district court committed plain error in failing to instruct the

jury on diminished capacity. Simmonds, 931 F.2d at 686. This court held that

even if the instruction on diminished capacity were warranted, "the district court's

instructions on specific intent were sufficient." Id. at 689. Consequently, even

assuming Mr. Simmonds counsel's performance fell below professional norms,

Mr. Simmonds has failed to show how his trial counsel's failure to request the

jury instruction was so prejudicial to his defense so as to deprive him "of a fair

trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.


                                          -23-
       Additionally, Mr. Simmonds was not entitled to an evidentiary hearing

before the district court to support his claim of ineffective assistance. In a § 2255

proceeding, the district court is not required to hold an evidentiary hearing on a

prisoner's claims where "the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255;

see also United States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir. 1995).

Because the records of the case conclusively show the prisoner is entitled to no

relief, we hold Mr. Simmonds was not entitled to an evidentiary hearing.

Consequently, because Mr. Simmonds failed to make a substantial showing of a

denial of a constitutional right, we deny his application for certificate of

appealability. 12



       Accordingly, we DENY Mr. Simmonds' application for a certificate of

appealability and DISMISS the appeal.




       12
         To the extent Mr. Simmonds' 28 U.S.C. § 2255 motion raises additional
issues, upon thorough review we find nothing in the record to support his
contentions and accordingly deny a certificate of appealability.


                                          -24-
