     Case: 11-40424     Document: 00511747829         Page: 1     Date Filed: 02/03/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 3, 2012
                                     No. 11-40424
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellant

v.

ANDRES SOSA-SAUCEDO, also known as Llantas,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:09-CV-491
                             USDC No. 6:07-CR-98-3


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Andres Sosa-Saucedo, federal prisoner # 14887-078, moves for a certificate
of appealability (COA), for appointment of counsel, and to proceed in forma
pauperis (IFP) to appeal the denial of his 28 U.S.C. § 2255 motion challenging
his guilty-plea conviction for conspiracy to possess with intent to distribute and
distribution of methamphetamine, cocaine, and marijuana.                    In his § 2255
motion, Sosa raised issues concerning ineffective assistance of counsel and the


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40424      Document: 00511747829         Page: 2     Date Filed: 02/03/2012

                                      No. 11-40424

validity of his guilty plea and sentence. The district court dismissed Sosa’s
§ 2255 motion as untimely.
       To obtain a COA, a petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 483 (2000). “A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). If a district court has rejected a claim on procedural
grounds, as in the instant matter, a COA should issue “when the prisoner shows,
at least, that jurists of reason would find it debatable whether the [application]
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, 484 (2000).
       Section 2255(f) sets forth a one-year time limitation in which a federal
prisoner must filed a § 2255 motion. The limitation period runs from, inter alia,
the date that the challenged conviction becomes final. § 2255(f)(1). In the
instant matter, Sosa’s conviction became final on October 17, 2008, when the
time to file his direct appeal expired.1 See FED. R. APP. P. 4(b)(1)(A) (2008);
FED. R. APP. P. 26(a)(2) (2008); United States v. Plascencia, 537 F.3d 385, 388-90
(5th Cir. 2008).
       Thus, under § 2255(f), Sosa had until October 17, 2009, to file a timely
§ 2255 motion. See Plascencia, 537 F.3d at 388-90. The seventeenth, however,
was a Saturday; thus, the one-year time limitation ended on Monday, October
19. See Fed. R. App. P. 26(a). As the district court determined, Sosa’s certificate

       1
         In 2008, Sosa had ten days excluding weekends and legal holidays to file a timely
notice of appeal. See FED. R. APP. P. 4(b)(1)(A) (2008); FED. R. APP. P. 26(a)(2) (2008). The
ten-day time period began on October 3, 2008, excluded October fourth (Saturday), fifth
(Sunday), eleventh (Saturday), twelfth (Sunday), and thirteenth (Columbus Day), and
concluded on October 17, 2008. See FED. R. APP. P. 4 (2008); FED. R. APP. P. 26 (2008).

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                                  No. 11-40424

of service for his § 2255 motion, which is in compliance with § 1746, reflects that
the motion was filed, as it was delivered to prison authorities for mailing, on
October 19, 2009. See Spotville v. Cain, 149 F.3d 374, 376-77 (5th Cir. 1998); 28
U.S.C. § 1746; FED. R. APP. P. 4(b)(1)(A) (2008); FED. R. APP. P. 26(a)(2) (2008).
Thus, Sosa’s motion was timely. Additionally, “the district court pleadings, the
record, and the COA application . . . are unclear or incomplete” as to whether
reasonable jurists could debate whether Sosa has made a valid claim of the
denial of a constitutional right. See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir.
2004).
      Accordingly, Sosa’s motion for a COA is GRANTED; his motion to proceed
IFP is GRANTED; motion to appoint counsel DENIED; the district court’s
judgment dismissing the motion as untimely is VACATED and the matter is
REMANDED for further proceedings. See id.; Whitehead v. Johnson, 157 F.3d
384, 388 (5th Cir. 1998).




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