                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            FEB 5 2003
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk


UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 02-4153
                                                 D.C. No. 2:01-CV-704-S and
v.                                                     2:97-CR-226-W
                                                          (D. Utah)
DAVID JAY HESS,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Petitioner, David Jay Hess, seeks a certificate of appealability (“COA”) so

he can appeal the district court’s denial of the motion to vacate, set aside, or



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. §

2253(c)(1)(B) (providing that a petitioner may not appeal the denial of a § 2255

motion unless the petitioner first obtains a COA). Hess pleaded guilty to one

count of mailing threatening communications in violation of 18 U.S.C. § 876. On

April 29, 2000, an amended judgment and conviction was issued by the district

court. Hess did not did not seek to withdraw his guilty plea or otherwise pursue a

direct appeal. The instant § 2255 motion was filed on September 11, 2001. In the

motion, Hess asserted a claim that his counsel provided constitutionally

ineffective assistance thereby rendering his guilty plea unknowing and

involuntary. 1

      Respondent moved to dismiss Hess’ § 2255 motion as untimely. The

district court granted the motion, concluding that the motion was filed outside the

one-year limitation period set forth in 28 U.S.C. § 2255. The court also

concluded that Hess had failed to diligently pursue his claims and failed to

demonstrate that his failure to file a timely § 2255 motion was caused by

extraordinary circumstances beyond his control. See Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000).




      1
       Hess’ motion sought a writ of habeas corpus pursuant to both 28 U.S.C. §
2241 and § 2255. The district court dismissed the claims brought pursuant to 28
U.S.C. § 2241 for lack of jurisdiction and Hess does not challenge that ruling.

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      In his appellate brief, Hess argues that the factual predicate of the claims

he presented in his § 2255 motion were not “discovered through the exercise of

due diligence,” until April 2001, when he retained an attorney who advised him of

the immigration consequences of his guilty plea. 28 U.S.C. § 2255(4). The

district court noted, however, that Hess does not dispute that on April 7, 2000 he

was served by the Immigration and Naturalization Service with a Notice to

Appear. That notice informed Hess that he was removable from the United States

because of his conviction. Hess’ additional argument that he did not waive the

right to challenge his guilty plea in a § 2255 motion because the ineffectiveness

of his counsel rendered his plea unknowing and involuntary is irrelevant to the

equitable tolling issue. To the extent Hess’ brief could be read to contain an

assertion that this court must always address ineffective assistance of counsel

claims, even when those claims are raised in an untimely § 2255 motion, that

assertion is incorrect and constitutes a misunderstanding of our holding in United

States v. Cockerham, 237 F.3d 1179, 1187-91 (10th Cir. 2001).

      To be entitled to a COA, Hess must 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. 474, 484-85 (2000) (holding that when a district court

dismisses a habeas petition on procedural grounds, a petitioner is entitled to a

COA only if he shows both that reasonable jurists would find it debatable whether


                                         -3-
he had stated a valid constitutional claim and debatable whether the district

court’s procedural ruling was correct). Our review of the record clearly

demonstrates that the district court’s dismissal of Hess’ § 2255 motion as

untimely is not deserving of further proceedings or subject to a different

resolution on appeal. Accordingly, we deny Hess’ request for a COA and

dismiss this appeal.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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