                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 6 1998
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 98-2088
                                                (D.C. No. CIV-97-1554-JP/DJS)
 CARLOS NEVAREZ-RODRIGUEZ,                                 (D. N.M.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY, 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); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

      Petitioner Carlos Nevarez-Rodriguez, a federal prisoner appearing pro se,

seeks a certificate of appealability to appeal the district court’s dismissal of his



      *
        This order and judgment is not binding precedent, except under the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.
motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. §

2255. We deny a certificate of appealability and dismiss the appeal.

      Petitioner was arrested by federal agents in February 1996 and charged with

drug-related crimes. He pleaded guilty to possession with intent to distribute

more than five grams of cocaine base on June 25, 1996, and judgment was entered

by the district court on October 10, 1996. He did not file a direct appeal. On

December 5, 1997, petitioner filed a pleading with the district court entitled “Ex

parte Motion Under FRCP Rule 9(b), and Rule 12(b)(1)(2)(3)(6), and (7).” In his

motion, petitioner argued he should be released from custody because the federal

government lacked jurisdiction over crimes committed in the State of New

Mexico, and there were no “published regulations in the federal Register to make”

the statute he was charged with violating applicable “to the several States and the

population at large in which [he] [wa]s a member.” The district court construed

the pleading as a 28 U.S.C. § 2255 motion and dismissed it as untimely.

      Before petitioner may proceed on appeal, he must obtain a certificate of

appealability. We will not grant the certificate absent a “substantial showing of

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

and Effective Death Penalty Act established a one-year period of limitations for §

2255 motions. See 28 U.S.C. § 2244(d)(1). Here, the limitations period began to

run on October 21, 1996, “the date on which the judgment became final by . . . the


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expiration of the time for seeking [direct] review.”   1
                                                           28 U.S.C. § 2244(d)(1)(A).

Because petitioner failed to file his motion on or before October 21, 1997, the

district court correctly dismissed his motion as untimely.

       The application for a certificate of appealability is DENIED and the appeal

is DISMISSED. The mandate shall issue forthwith.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




       1
         Because judgment was entered by the district court on October 10, 1996,
petitioner had ten days from that date to file a notice of appeal.    See Fed. R. App.
P. 4(b). Since expiration of the ten-day period occurred on a Sunday, petitioner
had until Monday, October 21, 1996, to file a notice of appeal.      See Fed. R. App.
P. 26(a). Petitioner did not file a notice of appeal and the one-year limitations
period for filing a § 2255 motion began running on that date, giving him until
October 21, 1997, to file a § 2255 motion.        See 28 U.S.C. § 2244(d)(1)(A).

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