                                                                      FILED
                                              United States Court of Appeals
                   UNITED STATES COURT OF APPEALS Tenth Circuit
                                                              November 23, 2011
                               TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,                     No. 11-6200
                                              (D.C. Nos. 5:11-CV-00321-L &
 v.                                                5:07-CR-00014-L-1)
                                                   (D. W.D. Oklahoma)
 REYES TERRONES-LOPEZ,

             Defendant - Appellant.


         ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Reyes Terrones-Lopez, proceeding pro se, filed a motion for

relief under 28 U.S.C. § 2255 in the United States District Court for the Western

District of Oklahoma. The court denied the motion. Defendant now seeks a

certificate of appealability (COA) from this court so that he may appeal the

district court’s decision. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal

denial of § 2255 relief). We deny the application for a COA and dismiss the

appeal because the district court’s decision that Defendant’s motion was untimely

is not debatable or wrong.

I.    BACKGROUND
      In January 2007 a federal grand jury indicted Defendant on ten counts

alleging drug offenses. In compliance with an agreement with the government, he

pleaded guilty to three counts charging distribution of cocaine. See 18 U.S.C.

§ 841(a)(1). He also waived his right to appeal or raise a collateral challenge to

his guilty plea or sentence, except that he retained the right to challenge a

sentence above the guidelines range. On October 10, 2007, the district court

entered judgment sentencing Defendant on the three counts to 108 months in

prison and dismissing the remaining counts.

      On December 22, 2008, Defendant filed a pro se notice of appeal. He

argued that his sentence should be vacated because the sentencing court failed to

consider all factors set forth in 18 U.S.C. § 3553(a) before imposing sentence.

On April 13, 2009, a panel of this court granted the government’s motion to

dismiss the appeal as untimely. See United States v. Terrones-Lopez,

No. 08-6274 (10th Cir. Apr. 13, 2009) (unpublished order). On January 13, 2011,

Defendant filed a nearly identical pro se notice of appeal. We dismissed the

appeal on February 17, 2011, this time raising sua sponte the inordinate lateness

of Defendant’s appeal. See United States v. Terrones-Lopez, No. 11-6011 (10th

Cir. Feb. 17, 2011) (unpublished order).

      On March 23, 2011, Defendant, proceeding pro se, filed his § 2255 motion

in district court. He raised six claims for relief: (1) trial counsel was ineffective

for failing to file a notice of appeal despite Defendant’s request for counsel to do

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so, and his waiver of his right to appeal was invalid; (2) trial counsel provided

ineffective assistance by failing to (a) investigate witnesses, (b) submit a

meaningful motion to suppress evidence, (c) keep Defendant apprised of his rights

and available defenses, (d) object to misleading testimony, (e) make Rule 32

objections to the presentence report, (f) submit authorities justifying a downward

departure, and (g) protect Defendant’s rights to due process and a direct appeal;

(3) the trial court procedurally erred by (a) ignoring his fast-track disparity

argument and (b) imposing sentence without stating reasons; (4) Defendant’s

indictment was defective because it failed to allege drug quantity and the range of

penalties; (5) Defendant’s sentence was outside the range of reasonableness; and

(6) Defendant should have received a downward departure because of his status as

a deportable alien. Defendant’s motion did not explain why it was filed after the

one-year limitations period imposed by 28 U.S.C. § 2255(f). The district court

denied Defendant’s motion as untimely. It also observed that even if Defendant

had timely filed his motion, it would be denied because Defendant had knowingly

and voluntarily waived his right to attack his sentence and his claims were

unsupported by the record.

      Defendant filed a timely notice of appeal. Reading liberally Defendant’s

pro se application for a COA, see Erickson v. Pardus, 551 U.S. 89, 94 (2007),

Defendant now challenges his sentence on the ground that 18 U.S.C. §§ 841 and

846 are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).

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II.      DISCUSSION

         “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). If the application was denied on procedural grounds, the applicant

must also show “that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). “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 petitioner should

be allowed to proceed further.” Id.

         Section 2255 motions are subject to a one-year statute of limitations. See

28 U.S.C. § 2255(f). The limitations period begins on the latest of four possible

dates:

         (1) the date on which the judgment of conviction becomes 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 facts supporting the claim or claims
         presented could have been discovered through the exercise of due
         diligence.

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28 U.S.C. § 2255(f). We generally assume that the limitations period begins to

run at the time the movant’s conviction became final unless the movant can show

that it should begin at a later time. See United States v. Valencia, 472 F.3d 761,

763 (10th Cir. 2006). “If the defendant does not file an appeal, the criminal

conviction becomes final upon the expiration of the time in which to take a direct

criminal appeal.” United States v. Prows, 448 F.3d 1223, 1227–28 (10th Cir.

2006).

         The district court entered judgment in Defendant’s case on October 10,

2007. At that time the Federal Rules of Appellate Procedure gave Defendant 10

days (excluding intermediate Saturdays, Sundays, and legal holidays) to file a

notice of appeal. See Fed. R. App. P. 4(b)(1)(A) (2008); Fed. R. App. P. 26(a)

(2008). Defendant’s conviction therefore became final on October 24, 2007, and

he had until October 24, 2008, to file a § 2255 motion. But Defendant did not file

his motion until March 23, 2011. No reasonable jurist could debate that the

motion was untimely. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)

(“This court has repeatedly insisted that pro se parties follow the same rules of

procedure that govern other litigants.” (internal quotation marks omitted)).

         Although the limitations period can be extended by equitable tolling, see

United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008), Defendant has

made no argument in the district court or this court that equitable tolling should

apply. Also, Defendant’s untimely notices of appeal did not delay the onset of

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the limitations period. See United States v. Smith, 2000 WL 639488, at *1 (10th

Cir. May 18, 2000) (unpublished).

III.   CONCLUSION

       We DENY Defendant’s request for a COA and DISMISS this appeal. We

DENY Defendant’s request to proceed in forma pauperis.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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