                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        February 6, 2008
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                               No. 07-4024
 v.                                                 (D.C. Nos. 2:06-CV-1059-JTG and
                                                           2:04-CR-00450-JTG)
 MARK-RICHARD; PATRICK,                                         (D. Utah)

           Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HENRY, Chief Judge, TYMKOVICH and HOLMES, Circuit Judges.


       Petitioner-Appellant Mark-Richard; Patrick, a federal prisoner acting pro se,

appeals from the district court’s denial of his petition for habeas corpus as time-barred.

Mr. Patrick did not seek a certificate of appealability (COA) from the district court.

However, because a COA is a jurisdictional prerequisite to Mr. Patrick’s appeal, see 28

U.S.C. § 2253(c)(1)(B), we must determine whether to grant a COA. Reviewing Mr.




       *
           This Order and Judgment is not binding precedent, except under the doctrines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 Fed. R. App. P. 32.1 and 10th CIR. R. 32.1. After
examining the briefs and the appellate record, this three-judge panel has determined
unanimously that oral argument would not be of material assistance in the determination
of this appeal. See Fed. R. App. P. 34(a); 10th CIR. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Patrick’s filings liberally,1 we hold that no reasonable jurist could conclude that the

district court’s dismissal on procedural grounds was incorrect. See Slack v. McDaniel,

529 U.S. 473, 484 (2000). Accordingly, we decline to issue a COA and DISMISS his

appeal.

                                    I. BACKGROUND

       On September 28, 2004, Mr. Patrick pleaded guilty to one count of knowingly and

intentionally attempting to coerce and entice a minor to engage in sexual activity, in

violation of 18 U.S.C. § 2422(b). The district court sentenced Mr. Patrick on February

22, 2005, and entered judgment on February 24, 2005. Mr. Patrick did not file a direct

appeal.

       On December 26, 2006, Mr. Patrick filed a pleading entitled “Petition for Writ of

Habeas Corpus, Jus Legitimum, Jus Quaesitum,” contending that because the Utah

federal district court did not have subject matter jurisdiction, the criminal judgment

against him was void. Construing Mr. Patrick’s habeas petition as a motion brought

under 28 U.S.C. § 2255, the district court entered an order denying relief.2 The court

       1
                Because Mr. Patrick is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v. U.S.
Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
       2
               Two days before the district court entered this order, Mr. Patrick filed a
pleading entitled “Petition to Sanction the Clerk of the Court for FRAUD, Pursuant to
F.R.C.P. 9(b) and 11(c)” arguing that the court clerk improperly “converted” his habeas
petition into a § 2255 motion. In this pleading, Mr. Patrick did not identify the legal basis
under which he purported to bring his petition. In his appellate papers, however, Mr.
Patrick contends that his petition should have been filed pursuant to 28 U.S.C. § 2241.
                                                                                (continued...)

                                              2
concluded that Mr. Patrick’s habeas petition was barred by the one-year statute of

limitations.3

                                     II. DISCUSSION

                A. 28 U.S.C. § 2255 is the Exclusive Remedy for Testing


       2
         (...continued)
The district court apparently did not give Mr. Patrick notice of its intention to construe his
pleading as a § 2255 motion or warn him of the possible consequences of a § 2255
classification, especially those relating to second or successive habeas actions. Compare
Ackerman v. Novak, 483 F.3d 647, 650 (10th Cir. 2007) (declining to decide whether
appellate court preauthorization requirement applies to second or successive § 2241
petitions) with Tuggle v. Addison, 247 Fed. App’x 155, 157 (10th Cir. 2007) (noting that
“[w]e have stated in several unpublished decisions that ‘prior authorization from a court
of appeals is not necessary to file a successive § 2241 petition’” (quoting White v.
McKinna, No. 06-1069, 2006 WL 1234867, at *1 (10th Cir. May 2, 2006))). Ordinarily,
when a district court plans to recharacterize a pro se litigant’s pleading as a § 2255
motion, notice and such warnings are required. See Castro v. United States, 540 U.S.
375, 382-83 (2003); United States v. Martin, 357 F.3d 1198, 1199 (10th Cir. 2004).
However, as discussed further below, the district court’s decision to recharacterize Mr.
Patrick’s pleading as a § 2255 motion was substantively correct. Therefore, Mr. Patrick’s
action was subject to a one-year limitations period. And, applying that period, the
inescapable consequence is that Mr. Patrick’s action is time-barred. Accordingly, any
conceivable error by the district court in construing Mr. Patrick’s pleading – without
notice and warnings – as a § 2255 motion, would be harmless. E.g., Martin, 357 F.3d at
1200 (“Notification of the recharacterization would not change the fact that the limitation
period for filing a § 2255 motion had long since passed.”).
       3
               The district court also addressed the merits concluding that the Utah federal
court properly had jurisdiction over Mr. Patrick’s criminal case. The government had
charged Mr. Patrick with using a facility of interstate commerce (i.e., his computer) to
commit the crime and Mr. Patrick had admitted this fact in entering his plea. Further, Mr.
Patrick acknowledged as part of his plea that his chat room conversations traveled
interstate, from Utah to Yahoo!’s server in California, and then back to Utah.
Accordingly, the court concluded that the interstate jurisdictional element of Mr. Patrick’s
offense of conviction, 18 U.S.C. § 2422(b), was satisfied. Moreover, the district court
noted that, pursuant to 18 U.S.C. § 3231, federal district courts have jurisdiction over
offenses against the laws of the United States.


                                              3
                          the Validity of a Criminal Judgment

       On appeal, Mr. Patrick suggests that the district court erred in denying his habeas

petition because it applied the 28 U.S.C. § 2255 one-year statute of limitations to his 28

U.S.C. § 2241 petition. We reject Mr. Patrick’s argument.

       The district court did not mischaracterize Mr. Patrick’s habeas petition. A § 2241

petition attacks the execution of a sentence. Haugh v. Booker, 210 F.3d 1147, 1149 (10th

Cir. 2000). On the other hand, a § 2255 petition, “attacks the legality of detention.”

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Because he contends that he was

convicted without jurisdiction, Mr. Patrick challenges the validity of his conviction. Such

challenges must be brought pursuant to § 2255 unless a “remedy by [§ 2255] motion is

inadequate or ineffective.” 28 U.S.C. § 2255. Mr. Patrick does not argue that the remedy

provided by § 2255 is inadequate or ineffective and no basis for such an argument is

readily apparent from the record. See Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir.

1999) (“Courts have found a remedy under 28 U.S.C. § 2255 to be inadequate or

ineffective only in extremely limited circumstances.”). Accordingly, the district court did

not err in characterizing Mr. Patrick’s pleading as a § 2255 motion and applying a one-

year limitations period to his action. And, as detailed below, the court’s procedural

conclusion followed ineluctably: Mr. Patrick’s action is time-barred.

                             B. Certificate of Appealability

       To obtain the jurisdictionally prerequisite COA, Mr. Patrick must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The


                                             4
Supreme Court has clarified that where, as here, the district court denies a habeas petition

on procedural grounds, a petitioner must show that reasonable jurists would find

debatable both (1) whether the petition states a valid claim of the denial of a

constitutional right, and (2) whether the district court was correct in its procedural ruling.

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 petition should be allowed

to proceed further.” Id. Mr. Patrick has not satisfied this burden.

       We review the district court’s factual findings for clear error and its legal

conclusions de novo. Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006), cert.

denied, 127 S. Ct. 3007 (2007). The district court correctly found that Mr. Patrick’s

petition was barred. His sentence became final on March 10, 2005, when he failed to

directly appeal the February 24, 2005 judgment. See United States v. Burch, 202 F.3d

1274, 1277 (10th Cir. 2000) (“To that end, read in the context of the AEDPA, § 2255’s

use of ‘final’ plainly means ‘a decision from which no appeal or writ of error can be

taken’ . . . .” (quoting Black's Law Dictionary, 629 (6th ed. 1990))).4 He did not file his

habeas petition until over one year and nine months later, on December 26, 2006. Mr.

       4
               The district court erroneously found that Mr. Patrick’s conviction became
final on the date his criminal judgment was entered. R., Vol. I, Doc. 2, at 2 (Order, dated
Jan. 11, 2005); see Burch, 202 F.3d at 1276 (acknowledging that there are several
“possible meanings” of the statutory term “final” but rejecting, inter alia, idea that “the
judgment of conviction could become final when it is entered by the district court”).
However, Mr. Patrick’s petition was not even close to being timely. Accordingly, the
district court’s error is of no consequence.

                                              5
Patrick’s petition – filed more than one year after the date his conviction became final –

is therefore barred by the statute of limitations.

       Accordingly, we decline to issue a COA and DISMISS Mr. Patrick’s appeal.

                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




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