                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         January 27, 2006
                                 TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                           Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 05-8090
                                                 (D.C. Nos. 04-CV-171-B and
 v.
                                                         02-CR-161)
                                                         (Wyoming)
 JAVIER ARMENTA,

          Defendant-Appellant.


                                      ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Javier Armenta, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) from this court to challenge the district court’s dismissal of

his § 28 U.S.C. § 2255 petition as untimely. 1 He also files a request to proceed in

forma pauperis (ifp). We exercise jurisdiction under 28 U.S.C.§§ 1291, 2253(c),

and conclude that jurists of reason would not find debatable the district court’s

dismissal of Mr. Armenta’s petition. We therefore deny his application for a

COA and dismiss the appeal.

      Mr. Armenta entered a guilty plea in federal court for various drug


      1
       Because Mr. Armenta is proceeding pro se, we liberally construe his pleadings
and submissions to this court. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
possession and distribution crimes. He did not pursue a direct appeal, and his

conviction and sentence became final on January 29, 2003. On June 9, 2004, Mr.

Armenta filed the instant 28 U.S.C. § 2255 petition seeking to vacate his

conviction, claiming that his rights were violated under the Vienna Convention

and that he received ineffective assistance of counsel.

      The district court dismissed Mr. Armenta’s petition as untimely, noting it

was not filed within the one-year limitations period outlined in § 2255. The court

rejected Mr. Armenta’s argument that his attorney’s failure to timely provide him

with a copy of his case file should extend the limitations period under § 2255(4).

That portion of the statue permits the limitations period to begin running from the

“date on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence,” 28 U.S.C. § 2255(4), which

Mr. Armenta claims did not occur until April 1, 2004, the date on which he

received the file from his attorney. The court found that the facts supporting Mr.

Armenta’s ineffective assistance of counsel claim were known to him at the time

he was sentenced, and that the later receipt of the case file did not provide Mr.

Armenta with any new evidence regarding his claim. Nor did Mr. Armenta make

any argument for why he should be excused from the running of the limitations

period for his Vienna Convention claim. The district court dismissed Mr.

Amrenta’s habeas petition as untimely and subsequently declined to grant a COA.


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      A COA should issue only where “the applicant has made a substantial

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

district court dismisses a habeas petition on procedural grounds, a COA should

issue only when “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). We have reviewed the record on appeal and Mr. Armenta’s submissions

to this court, in which he makes absolutely no argument as to why the district

court’s dismissal lacks merit. Accordingly, we hold that jurists of reason would

not find debatable the district court’s rejection of Mr. Armenta’s petition as

untimely.

      We DENY Mr. Armenta’s request to proceed ifp, DENY his application for

a COA, and DISMISS the appeal.

                                               SUBMITTED FOR THE COURT


                                               Stephanie K. Seymour
                                               Circuit Judge




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