                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 11, 2006
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,
                                                        No. 05-3471
 v.                                             (D.C. No. 02-CR-10079-M LB)
                                                          (D . Kan.)
 BUSTER J. DANIELS, SR.,

       Defendant - Appellant.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Defendant-Appellant Buster J. Daniels, Sr., a federal inmate appearing pro

se, appeals from the district court’s dismissal of his motion seeking to file a 28

U.S.C. § 2255 motion out of time. The district court, relying on United States v.

Verners, 15 Fed. Appx. 657 (10th Cir. 2001) (unpublished), dismissed the motion

for lack of jurisdiction. I R. Doc. 44. In Verners, we concluded that a similar

motion was not ripe until an actual § 2255 motion was filed and the limitations

period actually raised. 15 Fed. Appx. at 659-60. W e did not require a certificate

of appealability because a motion seeking to file a § 2255 motion out of time is

not a § 2255 motion. Verners, 15 Fed. Appx. at 658 n.1.

      On appeal, M r. Daniels argues the merits of the claims he would like to
bring. Though Verners is not precedential, we think its reasoning is sound and

conclude that the district court correctly dismissed M r. Daniels’ motion for lack

of jurisdiction. Verners stated that “the question of equitable tolling is ripe for

adjudication only when a § 2255 motion has actually been filed and the statute of

limitations has been raised by the respondent or the court sua sponte.” 15 Fed.

Appx. at 660 (emphasis in original). Of course, if the court acts on its own in

raising a limitations defense, it “must accord the parties fair notice and an

opportunity to present their positions.” Day v. M cDonough, 126 S. Ct. 1675,

1684 (2006).

      A FFIR ME D.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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