                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                             May 31, 2017
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-6006
                                                   (D.C. Nos. 5:15-CV-01330-F and
MARK A. PRENTICE,                                        5:13-CR-00138-F-1)
                                                            (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                    _________________________________

Before KELLY, MURPHY, and MATHESON, Circuit Judges.
                  _________________________________

      Mark A. Prentice, a federal prisoner proceeding pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. He also seeks leave to proceed in

forma pauperis. Exercising jurisdiction under 28 U.S.C. § 1291, we deny both

requests and dismiss this matter.




       * This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        Because Mr. Prentice is proceeding pro se, we construe his pleadings and
arguments on appeal liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e
must construe [a pro se litigant’s] arguments liberally; this rule of liberal construction
stops, however, at the point at which we begin to serve as his advocate.”).
                                 I.   BACKGROUND

       On December 19, 2013, Mr. Prentice pled guilty to federal drug conspiracy

and money laundering charges. On June 18, 2014, the court sentenced Mr. Prentice

to 300 months in prison and entered final judgment against him on June 20, 2014.

       The next year, on July 6, 2015, Mr. Prentice filed a pro se motion, which he

titled a “§ 3582(c)(2) motion,”2 and which the court re-characterized as a § 2255

motion. The court gave Mr. Prentice the chance to file his motion using a

standardized § 2255 form, but the court warned against Mr. Prentice raising any new

claims not originally presented in his July 6 motion. On December 4, 2015, Mr.

Prentice filed the standardized § 2255 form and raised new claims not raised in his

July 6 motion. Mr. Prenctice filed two supplements to his motions on October 6 and

November 3, 2016. In his two motions, Mr. Prentice raised 11 claims, including

claims based on ineffective assistance of counsel and lack of subject matter

jurisdiction.

       The court denied Mr. Prentice’s subject matter jurisdiction claim, and it denied

the remaining claims as time-barred. The court also denied Mr. Prentice a COA to

appeal its order.




       2
        The motion was titled a “Pro Se Motion Asking [the District] Court to
Adhere to its Obligation to Satisfy Itself of Art. III Subject Matter Jurisdiction Before
it Passes on the Merits of Petitioners § 3582(c)(2) Motion[] as Mandated by Art. III
and Hays 515 U.S. at 742 (1995).” Record on Appeal (“ROA”), Vol. I at 40 (second
brackets in original).
                                          -2-
       Mr. Prentice filed a motion under Federal Rule of Criminal Procedure 59(e) to

alter, amend, or reconsider the court’s denial of his § 2255 motion, which the court

also denied. The court again denied a COA.

       On February 13, 2017, Mr. Prentice filed a motion for the court to reconsider

its COA denial, which the court similarly denied.

                                     II. ANALYSIS

       Mr. Prentice must obtain a COA to appeal the district court’s denial of his

§ 2255 motion. 28 U.S.C. § 2253(c)(1)(B). Where, as here, the district court

dismissed the motion on procedural grounds, we will grant a COA only if Mr.

Prentice can demonstrate both “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, 484 (2000).

       We agree with the district court that Mr. Prentice’s appeal does not warrant a

COA. On appeal, Mr. Prentice does not challenge the court’s ruling that his claims

were time-barred. He instead contends the court erred in dismissing his claims

because their merits “trump” any issue concerning their timeliness. Aplt. Br. at 3.

Specifically, he states: “[A] claim of involuntary servitude trumps the time bar in

question and jurisdictional denial of counsel and lack of subject matter jurisdiction

claims must be heard.” Id. He states that a COA is justified “to address whether

[his] subjection to involuntary servitude trumps the one year limitation period and/or



                                           -3-
whether the . . . one year li[m]itation violates the 13th [A]mendment’s prohibition of

involuntary servitude.” Id. at 4.

      Mr. Prentice’s argument lacks merit. The Supreme Court has held that

dismissing a § 2255 motion as time-barred is proper—without assessing the motion’s

merits. Cf. Dodd v. United States, 545 U.S. 353, 359 (2005) (recognizing that the

time-bar for § 2255 motions creates “the potential for harsh results in some cases”

but declining “to rewrite the statute that Congress has enacted”). He has thus not

raised a question over which reasonable jurists could debate.

      To the extent he seeks to raise a separate claim under the Thirteenth

Amendment, or argue that such a claim would “trump” any time bar under § 2255,

we deny a COA because Mr. Prentice failed to raise this as a separate claim in district

court. And to the extent Mr. Prentice challenges the district court’s subject matter

jurisdiction over his criminal case and sentence, his claim lacks merit. 18 U.S.C.

§ 3231 (providing that federal district courts have jurisdiction for cases involving

federal crimes).

                                    III. DISPOSITION

      We deny Mr. Prentice’s request for a COA and dismiss this matter. We also

deny Mr. Prentice’s request to proceed in forma pauperis.


                                            ENTERED FOR THE COURT,



                                            Scott M. Matheson, Jr.
                                            Circuit Judge

                                          -4-
