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

                              FOR THE TENTH CIRCUIT                           April 17, 2018
                          _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-6234
                                                  (D.C. Nos. 5:16-CV-00675-C and
JOSE JESUS RAMIREZ-HERNANDEZ,                           5:07-CR-00252-C-1)
                                                            (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

      Jose Jesus Ramirez-Hernandez, a federal prisoner appearing pro se,1 seeks a

certificate of appealability (COA) to challenge the denial of his 28 U.S.C. § 2255

habeas corpus motion. He also seeks leave to proceed in forma pauperis (ifp).

Exercising jurisdiction under 28 U.S.C. § 1291, we grant ifp status, deny the COA,

and dismiss his appeal.




      *
         This order is not binding precedent, except under the doctrines of law of the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 Ramirez-Hernandez appears pro se, we liberally construe his
petition. Clark v. Oklahoma, 468 F.3d 711, 713 n.1 (10th Cir. 2006).
                                    BACKGROUND

       Ramirez-Hernandez pleaded guilty to conspiracy to possess and distribute

methamphetamine, see 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(viii), and possession

of a firearm in furtherance of a drug trafficking crime, see 18 U.S.C. §924(c). In his

plea agreement, Ramirez-Hernandez acknowledged the 10-year mandatory-minimum

sentence for the methamphetamine-conspiracy charge and the statutorily required 5-

year consecutive sentence on the firearm charge. In addition, he agreed to forfeit cash

proceeds and firearms to the United States. In April 2008, the district court sentenced

Ramirez-Hernandez to the required 180 months of imprisonment.

       In June 2016, Ramirez-Hernandez filed a motion requesting a reduction of

sentence, relying on Johnson v. United States, 135 S. Ct. 2551. The district court

noted that though the motion “could be construed as asserting a 28 U.S.C. § 2255

Motion . . . [the] pleading is not on the form required by” the local civil rules and

“does not contain the information necessary for consideration as a § 2255 Motion.”

R. vol. 1 at 121. The district court gave Ramirez-Hernandez the opportunity to file a

compliant motion.

       Instead, Ramirez-Hernandez filed a motion for reconsideration, which the district

court denied. On August 5, 2016, Ramirez-Hernandez filed a notice of appeal from the

denial of the motion for reconsideration.

       But on September 8, 2016, Ramirez-Hernandez filed a § 2255 motion on the

correct form, asserting an ineffective-assistance-of-counsel claim. The district court



                                             2
analyzed his filing as a § 2255 motion, and on September 14 it dismissed his claim as

untimely.

       On October 7, 2016, Ramirez-Hernandez filed his combined opening brief and

application for a certificate of appealability in this case. On appeal, he argues that his trial

counsel was ineffective, violating his Sixth Amendment rights, because counsel failed to

inform him of his rights—leading to an invalid guilty plea—and failed to appeal the

district court’s judgment.2 He requests that the court vacate his sentence and allow him to

proceed to a jury trial.

                                           DISCUSSION

1.     Characterization of Claim

       Though Ramirez-Hernandez appealed from the denial of the motion for

reconsideration, the district court had not construed the underlying motion as

asserting a § 2255 claim. So there is little for us to review. The order didn’t conclude

much of anything—it just gave Ramirez-Hernandez a second chance.

       But his September filing was a proper § 2255 motion and the district court

treated it as such. So we characterize his opening brief in this case as the functional

equivalent of a notice of appeal from the September 14 judgment. See Torres v.

Oakland Scavenger Co., 487 U.S. 312, 317 (1988) (“[A] court may nonetheless find

that the litigant has complied with the [appeal requirements] if the litigant’s action is

the functional equivalent of what the rule requires.”). And, bolstering that choice, his


       2
      In his plea agreement, Ramirez-Hernandez waived his right to appeal any
component of his conviction.
                                               3
appellate brief focuses on the same material (ineffective assistance of counsel) as his

September § 2255 motion.

2.     Timeliness3

       After clearing that initial hurdle, Ramirez-Hernandez runs into another. To

appeal the district court’s order denying relief under § 2255, Ramirez-Hernandez

must first obtain a COA. We issue a COA only “if the applicant has made a

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

       Where, as here, the district court denies a § 2255 motion on procedural

grounds, a petitioner must show that reasonable jurists would find it debatable that

(1) his petition states a valid claim of the denial of a constitutional right, and (2) the

district court’s procedural rulings were incorrect. Slack v. McDaniel, 529 U.S. 473,

484 (2000). So we turn to whether the district court was correct that Ramirez-

Hernandez’s claim was time-barred.

       Under 28 U.S.C. § 2255(f), Ramirez-Hernandez had one year to file his habeas

petition. That period runs from the date on which the judgment of conviction becomes

final. In April 2008, the district court sentenced Ramirez-Hernandez, and he didn’t appeal

the judgment. And Ramirez-Hernandez waited until August 2016 to file his § 2255

motion—well after the limitations period.




       3
         Appellant’s combined opening brief and application for a certificate of
appealability doesn’t address the § 2255 limitations period and instead lays out an
ineffective-assistance-of-counsel claim. But liberally construing the pleadings, we
address the dispositive limitations-period issue.
                                             4
       To overcome this statute-of-limitations bar, Ramirez-Hernandez must show (1)

that facts supporting the claim became newly available, or (2) that he is entitled to

equitable tolling. Neither applies.

       Ramirez-Hernandez points to no new evidence that couldn’t have been discovered

through due diligence. In his § 2255 motion, he simply argues that he was unaware that

any forfeiture was a component of his sentencing. But, as the district court noted, that

forfeiture was part of his signed plea agreement.4

       Nor does equitable tolling apply. Equitable tolling “is only available when an

inmate diligently pursues his claims and demonstrates that the failure to timely file

was caused by extraordinary circumstances beyond his control.” Marsh v. Soares,

223 F.3d 1217, 1220 (10th Cir. 2000). Ramirez-Hernandez’s § 2255 motion and his

appellate brief identify no exceptional circumstances—so equitable tolling isn’t

available.

       Ramirez-Hernandez failed to file his motion within the one-year limitations

period. Accordingly, no reasonable jurist could debate the district court’s determination

that Ramirez-Hernandez isn’t entitled to equitable relief and that his § 2255 motion is

therefore subject to dismissal.




       4
         And, as the district court noted, the forfeiture has no connection to his
ineffective-assistance claims anyway.
                                             5
                                   CONCLUSION

      For the reasons stated, we deny Ramirez-Hernandez a COA, grant his ifp

request, and dismiss the appeal.


                                        Entered for the Court


                                        Gregory A. Phillips
                                        Circuit Judge




                                        6
