                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            MAR 22 2005
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

              Respondent-Appellee,                        No. 04-6307
       v.                                               (W.D. Oklahoma)
 RONNIE DARNELL MILLER,                             (D.C. Nos. 91-CR-51 and
                                                         04-CV-954-R)
              Petitioner-Appellant.




                                       ORDER


Before EBEL, McKAY, and HENRY, Circuit Judges.


      Ronnie Miller, a federal prisoner proceeding pro se, seeks a certificate of

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

vacate, set aside, or correct sentence. Mr. Miller also seeks to proceed in forma

pauperis.

      To obtain a certificate of appealability, Mr. Miller must demonstrate “that

jurists of reason would find it debatable whether the petition states a valid claim

of the denial of a constitutional right, and 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, 478 (2000).
                                 I. BACKGROUND

      Prisoners whose convictions became final on or before April 24, 1996, the

effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”)

became effective, must file motions pursuant to 28 U.S.C. § 2255 on or before

April 24, 1997. See United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003).

On July 30, 1991, Mr. Miller was convicted for possession with intent to

distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and conspiracy to

distribute cocaine and cocaine base in violation of 21 U.S.C. § 846. This court

affirmed his conviction on March 1, 1993.

      Because Mr. Miller did not elect to seek certiorari in the United States

Supreme Court, his conviction and sentence became final ninety days after our

March 1, 1993 opinion, or on May 30, 1993. See S UP . C T . R. 13(1) (establishing a

ninety-day window during which a defendant may seek certiorari from a judgment

of a federal court of appeals); United States v. Burch, 202 F.3d 1274, 1276 (10th

Cir. 2000) (holding that “for purposes of determining when the limitations period

in 28 U.S.C. § 2255(1) begins to run if a defendant does not petition the United

States Supreme Court for a writ of certiorari after h[is] direct appeal, h[is]

judgment of conviction is final after the time for seeking certiorari review has

expired”).




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       Therefore, Mr. Miller had until April 24, 1997 to file his § 2255 motion,

unless, as the district court noted, “the statute of limitations did not begin to run until

a later date as set forth in 28 U.S.C. § 2255(2), (3) or (4)” or if the AEDPA statute

of limitations should be equitably tolled. Rec. doc. 341 at 2 (Dist. Ct. Order, filed

Sept. 27, 2004). Section 2255 provides that

       A 1-year period of limitation shall apply to a motion under this section.
       The limitation period shall run from the latest of--

              (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.

28 U.S.C. § 2255(2)-(4).

                                    II. DISCUSSION

       Mr. Miller filed his § 2255 motion on August 2, 2004. The district court

denied his § 2255 motion as untimely, and noted that Mr. Miller does not argue

that the statute of limitations should be equitably tolled. Rather, Mr. Miller

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argued before the district court, and also argues before us, that the application of

the AEDPA statute of limitations to an individual like himself is impermissible

retroactive and precluded by the United States Supreme Court’s decision in

Landgraf v. USI Film Products, 511 U.S. 244 (1994).

      In United States v. Simmonds, 111 F.3d 737 (10th Cir.1997), overruled in

part by Hurst, 332 F.3d 1256 n.4 (en banc footnote), we concluded application of

the one-year limitations period to bar § 2255 actions by prisoners whose

convictions became final before the AEDPA took effect would be impermissibly

retroactive. To avoid impermissible retroactivity, such prisoners must be given a

reasonable amount of time after the effective date of the statute to bring their

actions. We further determined that the statutory one-year period was a

reasonable time, thus requiring prisoners whose convictions became final on or

before April 24, 1996 to file their § 2255 motions before April 24, 1997. Hurst,

332 at 1261; Simmonds, 111 F.3d at 746.

                                 III. CONCLUSION

      Accordingly, for substantially the same reasons as the district court, we

reject Mr. Miller’s suggestion that he is not bound by AEDPA’s statute of

limitations. We conclude that the district court correctly dismissed Mr. Miller’s §

2255 motion as untimely. We determine that Mr. Miller has failed to raise a




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debatable issue, and therefore we DENY his request for a COA, and DISMISS the

appeal.

                                            Entered for the Court,

                                            Robert H. Henry
                                            Circuit Judge




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