                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   May 27, 2014
                                TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 13-4182
 v.                                            (D.C. No. 2:13-CV-00308-CW)
                                                          (D. Utah)
 JOHN PETER GREALISH,

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.



      John Peter Grealish, a federal inmate proceeding pro se, seeks a certificate

of appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate his sentence. The district court determined that the

motion was untimely, and in the alternative, concluded that any failure of Mr.

Grealish’s attorney to object to the imposition of supervised release did not

constitute ineffective assistance of counsel. Grealish v. United States, No. 2:13-

CV-00308-CW (D. Utah Nov. 26, 2013). Because Mr. Grealish’s motion was

untimely and he has not made “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss this
appeal.



                                    Background

      On September 12, 2011, Mr. Grealish pleaded guilty to mail fraud affecting

a financial institution in violation of 18 U.S.C. § 1341. 1 R. 66. Although Mr.

Grealish faced a maximum 30-year sentence, see 18 U.S.C. § 1341, Mr.

Grealish’s Presentence Report (“PSR”) recommended a guideline range of 41 to

51 months’ imprisonment. 1 R. 3-4. Initially, Mr. Grealish was sentenced to 32

months’ incarceration and 60 months’ supervised release. 1 R. 26-27. However,

in December 2011, his supervised release was reduced to 36 months, with this

sentence becoming final on January 6, 2012. 1 R. 27, 66. In June 2012,

approximately nine months after his initial sentencing, Mr. Grealish surrendered

to authorities. 1 R. 102. He did not file a direct appeal. 1 R. 48.

      In February 2013, Mr. Grealish filed a petition under 28 U.S.C. § 2241 in

South Dakota arguing that his total sentence of 68 months—32 months’

incarceration plus 36 months’ supervised release—exceeded the 41- to 51-month

sentencing guideline range. 1 R. 48-49, 66. On April 8, 2013, the federal district

court in South Dakota denied the § 2241 petition on the grounds that Mr. Grealish

had not demonstrated that any remedy under § 2255 was inadequate or

ineffective. 1 R. 48-52 (Grealish v. Willis, No. CIV 13-4020-RAL (D. S.D. Apr.

8, 2013).


                                        -2-
         On May 2, 2013, Mr. Grealish filed the instant § 2255 motion, arguing that

(1) his counsel was ineffective for failing to understand and object to his

improper sentence, and (2) the court should grant a one-year filing extension

under Fed. R. Crim. P. 45(b)(1)(B) in order to address the merits of his

ineffective assistance of counsel claim. 1 R. 3-11, 66. Mr. Grealish contends

that excusable neglect justified his untimely filing because (a) he only learned the

significance of his supervised release as it relates to his total sentence after he

surrendered and received assistance from his fellow inmates, 1 R. 9-10; and (b)

the nine months before he self-surrendered should not count against him because

he was barred from filing a § 2255 motion as he was not yet in custody, 1 R. 11.

Mr. Grealish seeks to have his 32 months’ incarceration reduced by 17 months so

that his total sentence would fall within the guideline range. 1 R. 11.

         The district court denied Mr. Grealish’s § 2255 motion as untimely because

he failed to meet the criteria for an extension under § 2255(f)(4). 1 R. 67. The

district court explained that (1) a failure to appreciate the legal significance of a

known fact is inadequate to justify an extension; (2) Mr. Grealish was aware of

his combined sentence at his initial sentencing, making his self-surrender claim

irrelevant; and (3) Mr. Grealish failed to satisfy equitable tolling under Gibson v.

Klinger, 232 F.3d 799, 808 (10th Cir. 2000), because he did not demonstrate

either an exceptional circumstance or that he diligently pursued his claims. 1 R.

67-68.


                                          -3-
      In the alternative, the district court explained that supervised release could

be imposed even though the total sentence exceeded the recommended guideline

range for incarceration. 1 1 R. 69 (citing United States v. Robinson, 62 F.3d 1282,

1285 (10th Cir. 1995)). Thus, counsel could not be ineffective for failing to

object to Mr. Grealish’s sentence. 1 R. 70 (citing Strickland v. Washington, 466

U.S. 668, 694 (1984)).

      Mr. Grealish raises similar arguments to this court in his COA application.

1 R. 102-25.



                                     Discussion

      A COA requires that an applicant make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district

court dismisses a § 2255 motion on procedural grounds, the movant must

demonstrate that it is reasonably debatable whether (1) the motion states a valid

claim of the denial of a constitutional right and (2) the district court’s procedural

ruling is correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Section 2255 contains a one-year limitations period that runs from the date

a judgment of conviction is deemed final. 28 U.S.C. § 2255(f)(1). Using January

6, 2012, as the date that Mr. Grealish’s sentence became final, he had until

      1
        The district court also noted that the imposition of 36 months’ supervised
release was within the 36- to 60-months guideline range for supervised release
following incarceration. 1 R. 67.

                                         -4-
January 6, 2013, to file his § 2255 motion. Thus, as Mr. Grealish recognizes, his

§ 2255 motion—filed May 2, 2013—was untimely. Nonetheless, Mr. Grealish

asks us to overlook his untimeliness based primarily on “excusable neglect” as

recognized by Fed. R. Crim. P. 45(b)(1)(B) because he diligently pursued his

claim once he was in custody following his self-surrender, albeit, by first

incorrectly filing a § 2241 petition. 1 R. 104-05. However, Rule 45(b)(1)(B)

cannot operate to extend the statutory limitation period for a § 2255 motion. See

Fed. R. Crim. P. 1(a)(1) (rules govern criminal proceedings).

      Rather, to be entitled to equitable tolling for his § 2255 motion, Mr.

Grealish must show “(1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way.” Lawrence v. Florida,

549 U.S. 327, 336 (2007); see also Gibson, 232 F.3d at 808 (applying equitable

tolling to the one-year statute of limitations in 28 U.S.C. § 2244). We agree with

the district court that neither occurred here. Mr. Grealish’s self-surrender does

not create an exceptional circumstance; he was aware of his sentence regardless

of whether he was in custody. Nor does Mr. Grealish’s reliance on an untimely §

2241 petition—filed a month after the one-year deadline and some eight months

after his self-surrender—constitute diligence in pursuing his ineffective assistance

of counsel claim.

      Because Mr. Grealish’s § 2255 petition was untimely, we need not reach

his ineffective assistance of counsel claim.


                                        -5-
Accordingly, we DENY a COA and DISMISS the appeal.



                           Entered for the Court


                           Paul J. Kelly, Jr.
                           Circuit Judge




                             -6-
