21 F.3d 1123
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Ronald Anthony VASHONE, Petitioner-Appellant,v.Larry EMBRY, Acting Warden;  Gale A. Norton, AttorneyGeneral of the State of Colorado, Respondents-Appellees.
No. 94-1011.
United States Court of Appeals, Tenth Circuit.
April 5, 1994.

Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit Judges.

ORDER AND JUDGMENT1
McKAY

1
The respondents in this case chose not to file a brief.2  The appellant, Mr. Vashone, has agreed that this case may be submitted for decision on the briefs.  See Fed.  R.App. P. 34(f);  10th Cir.  R. 34.1.2.  The case is therefore ordered submitted without oral argument.


2
Mr. Vashone filed an out of time motion to reconsider his sentence pursuant to Colo.  R.Crim. Pro. 35(c).  Rule 35(c) requires such motions to be filed within 120 days of sentencing.  Mr. Vashone was convicted in 1975, but did not file his motion for reconsideration until 1991.  He argued that this lapse was excused by the fact that his appointed counsel never took any action on his case.  The district court adopted the magistrate judge's report and recommendation and dismissed Mr. Vashone's habeas petition.


3
After reviewing Petitioner's brief and the record on appeal, we find no error.  Accordingly, we AFFIRM for substantially the reasons set forth in the district court's Order of June 30, 1993.


4
AFFIRMED.



1
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993.  151 F.R.D. 470


2
 Mr. Vashone's Motion for Substitution of Party, pursuant to Fed.  R.App. P. 43(c), is granted.  Larry Embry, Acting Warden, is hereby substituted in place of Thomas I. Cooper


