                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               MAY 23 2002
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 v.                                                           No. 01-3350
 DWAINE EVANS, JR.,                                  (D.C. Nos. 01-CV-3411-RDR,
                                                        97-CR-40035-03-RDR)
           Defendant - Appellant.                            (D. Kansas)




                                   ORDER AND JUDGMENT*


Before SEYMOUR, HENRY, and BRISCOE, 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.

       Defendant Dwaine Evans, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) to appeal the district court's denial of his 28 U.S.C. § 2255 motion to



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
vacate, set aside, or correct sentence. Because he has failed to make a “substantial

showing of the denial of a constitutional right,” as required by 28 U.S.C. § 2253(c)(2), we

deny a COA and dismiss the appeal.

       Two separate criminal proceedings were filed against Evans in 1997. Judgment

was entered in the first case on September 8, 1998, and an amended judgment was

entered on October 1, 1998, to correct a clerical error. Judgment was entered in the

second case on November 12, 1998. Evans did not file a direct appeal in either case. On

October 9, 2001, Evans, appearing pro se, filed his § 2255 motion alleging he received

ineffective assistance of counsel at sentencing in both cases. Evans alleged his counsel

failed to object to the district court's application of sentencing enhancements under

U.S.S.G. § 3B1.1(c). The district court denied the motion, concluding it was filed “well

after the one-year statute of limitations” set forth in § 2255. ROA, Doc. 213 at 3.

       Section 2255 provides that a one-year “period of limitation shall apply to a

motion” filed under the section. 28 U.S.C. § 2255. Typically, the one-year period runs

from “the date on which the judgment of conviction becomes final.” Id. Recognizing

that his motion is untimely, Evans asserts he did not learn of the facts giving rise to his

ineffective assistance of counsel claims, i.e., the district court's application of sentencing

enhancements, until December 2000 when he met with prison officials to discuss his

security level and work assignments. Evans contends that the one-year period of

limitations should run from that date.


                                               2
       Section 2255(4) allows the one-year period of limitations to be tolled until “the

date on which the facts supporting the claim . . . presented could have been discovered

through the exercise of due diligence.” We conclude that Evans learned, or with due

diligence could have learned, about the sentencing enhancements even prior to the time

judgment was entered in each of his cases. E.g., Fed. R. Crim. P. 32(b)(6)(A) (requiring

that the probation officer provide defendant with a copy of the presentence report not less

than 35 days before the sentencing hearing); Fed. R. Crim. P. 32(c)(3)(A) (requiring that

the district court, prior to imposing sentence, verify that defendant and defense counsel

have read and discussed the presentence report). We find no basis for deviating from the

general rule that the one-year period of limitations runs from the date of judgment.

       The request for a COA is DENIED and the appeal is DISMISSED. The mandate

shall issue forthwith.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




                                             3
