                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS                 October 2, 2008
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-4116
 DAVID A. SAUNDERS,                           (D.C. No. 2:08-CV-00448-DAK)
                                                         (D. Utah)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      David Saunders, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Because Saunders

has failed to satisfy the standards for the issuance of a COA, we deny his request

and dismiss the matter.

                                         I.

      On May 26, 2004, Saunders pled guilty to receipt and possession of child

pornography, in violation of 18 U.S.C. § 2252A. On November 29, 2004, the


      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
district court conducted a sentencing hearing for Saunders. After calculating a

total offense level of 25, a criminal history category of I, and a resulting guideline

range of 57 to 71 months, the district court imposed a 60-month sentence, to be

followed by a 60-month term of supervised release. Saunders did not file a direct

appeal.

      In 2007, Saunders began filing a series of post-conviction motions. The

first of those motions, which alleged the district court lacked jurisdiction to enter

the judgment of conviction, was construed by the district court as a 28 U.S.C. §

2255 motion and dismissed as untimely. We denied Saunders application for a

COA to appeal the district court’s order. United States v. Saunders, 248 Fed.

App’x 967, 968 (10th Cir. 2007) (unpublished). Saunders then filed a 28 U.S.C. §

2241 habeas petition challenging the Bureau of Prisons’ failure to credit his

pretrial release time toward his sentence. The district court denied Saunders’

petition on the merits and we affirmed in an unpublished order and judgment.

Saunders v. United States, 260 Fed. App’x 73 (10th Cir. 2008). Next Saunders

filed a motion in his original criminal case entitled “Motion for Modification of

an Imposed Term of Imprisonment 18 U.S.C. § 3582(c)(2).” In that motion,

Saunders again complained that his pretrial release time had not been credited

toward his sentence. The district court denied the motion, and Saunders did not

appeal that decision.

      Saunders’ latest challenge, filed on June 6, 2008, was a “Motion to Reverse

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and Otherwise, Set Aside Illegal Portion of Sentence.” In that motion, Saunders

argued that his 11-month period of pretrial release, combined with his 60-month

term of imprisonment, effectively placed him at the top of the 57 to 71-month

guideline range calculated by the district court, and thereby rendered the 60-

month term of supervised release imposed by the district court unconstitutional

under United States v. Booker, 543 U.S. 220 (2005). The district court concluded

that Saunders’ motion, “while not styled as such, [wa]s a successive motion under

28 U.S.C. § 2255,” and could not be filed without express authorization from this

court. ROA, Vol. 1, Order at 2. The district court ultimately denied the motion,

rather than transferring it to this court, because it concluded the motion “[wa]s

not only time-barred, but the court ha[d] twice decided th[e] very issue pertaining

to [Saunders’] pre-trial . . . release, and the Tenth Circuit ha[d] affirmed the

decision.” Id. at 3.

      Saunders has now filed an application for COA with this court.

                                          II.

      The issuance of a COA is a jurisdictional prerequisite to Saunders’ appeal

from the denial of his § 2255 motion. 1 Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). A COA may be issued “only if the applicant has made a substantial

      1
        Although Saunders contends the district court erred in recharacterizing his
latest motion as a § 2255 motion, we agree with the district court’s
recharacterization. Further, to the extent the district court failed to notify
Saunders about the recharacterization and its potential consequences, we conclude
such failure was harmless.

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showing of the denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). To

make such a showing, an applicant must demonstrate “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (citation and internal quotation marks omitted). “When the district

court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue when the prisoner

shows, at least, 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.” Id.

      After reviewing Saunders’ application for COA and the record on appeal,

we conclude Saunders has failed to establish his entitlement to a COA. To begin

with, Saunders’ motion, which was filed approximately three and a half years

after his conviction and sentence became final, was clearly untimely. See 28

U.S.C. § 2255(f) (outlining one-year limitations period for filing § 2255 motions).

Even if we were to ignore this fatal procedural problem, Saunders, whose

conviction and sentence became final before Booker was issued, cannot rely on

Booker because we have consistently held that Booker did not announce a new,

retroactive rule of constitutional law. E.g., Bey v. United States, 399 F.3d 1266,


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1268-69 (10th Cir. 2005).

      The application for COA is DENIED and the matter is DISMISSED.

Saunders’ motion for leave to proceed in forma pauperis on appeal is DENIED.


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




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