                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      September 8, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                           No. 13-3228
v.                                              (D.C. Nos. 2:13-CV-02281-JWL &
                                                     2:05-CR-20017-JWL-2)
MIGUEL ROMERO,                                              (D. Kan.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, PORFILIO, and MATHESON, Circuit Judges.


      Defendant Miguel Romero was convicted in 2006 of several drug trafficking

crimes and sentenced to life in prison. We affirmed his convictions and sentence in

2008. United States v. Verdin-Garcia, 516 F.3d 884, 889 (10th Cir. 2008). The

Supreme Court denied his petition for a writ of certiorari on October 6, 2008.

Verdin-Garcia v. United States, 555 U.S. 868 (2008).



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In 2012 or 2013, Mr. Romero filed a Freedom of Information Act request for

files relating to his prosecution. On June 10, 2013, he filed a pro se motion to vacate

his sentence under 28 U.S.C. § 2255, claiming that he learned for the first time on

April 13, 2013, from the documents he received that the government had offered him

a plea. The district court denied the § 2255 motion as untimely under AEDPA’s1

one-year statute of limitations, 28 U.S.C. § 2255(f). R. Vol. 1, at 114-18.

      Mr. Romero filed this appeal and a motion for a certificate of appealability

(COA), arguing that his trial counsel provided ineffective assistance for failing to

inform him of the plea offer, and that AEDPA’s one-year clock did not start until

April 13, 2013, when he learned that there had been a plea offer. A judge of this

court granted Mr. Romero a COA for the purpose of ordering a limited remand for

findings to be made, and the district court appointed counsel to represent Mr. Romero

on remand. The district court determined after a hearing that the evidence showed

that Mr. Romero’s counsel advised him of the plea offer, in English and Spanish, on

January 20, 2006, or, at the latest, on March 1, 2006. The district court’s findings

supported its conclusion that AEDPA’s one-year clock started on October 6, 2008,

making Mr. Romero’s June 10, 2013, § 2255 motion untimely. Mr. Romero was

allowed time to file a supplemental brief in this court.

      Mr. Romero has been given an ample opportunity to make his case, but he has

failed to demonstrate factual support for his allegations that his trial counsel did not
1
      The Antiterrorism and Effective Death Penalty Act (AEDPA).


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advise him of the government’s plea offer. His pro se supplemental response changes

nothing, except that he takes issue with the competence of the attorney who

represented him at the hearing on limited remand. He has not controverted the

district court’s findings in any way. Upon reflection, we conclude that this appeal is

frivolous and that a COA was improvidently granted.

      The COA is vacated, and the appeal is dismissed.


                                               Entered for the Court


                                               John C. Porfilio
                                               Circuit Judge




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