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

                             FOR THE TENTH CIRCUIT                       September 13, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 18-4089
                                                   (D.C. Nos. 4:18-CV-00009-TS and
TERRY ARNOLD MESSER,                                     2:13-CR-00128-TS-1)
                                                               (D. Utah)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY *
                    _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________

       Federal prisoner Terry Messer, proceeding pro se, moved in district court

under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The court

dismissed the motion as untimely filed. Mr. Messer seeks a certificate of

appealability (“COA”) to challenge this ruling. See 28 U.S.C. § 2253(c)(1)(B)

(requiring a COA to appeal an order denying a § 2255 motion). Exercising

jurisdiction under 28 U.S.C. § 1291, we deny a COA and dismiss this matter.1


       *
         This order is not binding precedent, except under the doctrines of law of the case,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. Messer is pro se, we liberally construe his filings but do not act as
his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
                                 I. BACKGROUND

      Mr. Messer pled guilty to one count of distribution of methamphetamine in

violation of 21 U.S.C. § 841(a)(1). Before he was sentenced, the United States

Probation Office prepared a Presentence Report (“PSR”). It recommended that Mr.

Messer be considered a career offender under United States Sentencing Guideline

(“U.S.S.G.”) § 4B1.1(a) based on three previous controlled substance convictions

listed in the PSR. The district court agreed and sentenced him to 240 months in

prison. Judgment was entered on November 13, 2013. Mr. Messer did not appeal.

      Unbeknownst to the Probation Office and the district court, one of Mr.

Messer’s drug convictions, a State of Utah conviction in 2001 for Unlawful

Possession of Laboratory Equipment or Supplies, had been incorrectly listed in the

PSR as a conviction for Operation of a Clandestine Laboratory.2 This error underlies

Mr. Messer’s request for a COA.

      On June 18, 2014, Mr. Messer filed a Petition for Writ of Coram Nobis in the

federal district court. On June 19, 2014, he filed a § 2255 motion and asked the court

to construe his coram nobis petition as a § 2255 motion. He later moved to dismiss

his § 2255 motion. On October 21, 2014, the court granted this request and

dismissed the § 2255 motion without prejudice.

      2
          It is not clear whether the Probation Office relied on state court records, the
National Crime Information Center (“NCIC”) database, or both for this information. The
PSR states that “[c]ourt records report an offense date of January 14, 1999.” ROA, Vol.
III at 18.



                                            2
      On April 2, 2018, the district court received Mr. Messer’s instant § 2255

motion, dated March 20, 2018. The motion alleged ineffective assistance of counsel

claims. In particular, it alleged that his counsel should have objected to his

classification as a career offender when the sentencing court relied on his PSR’s

erroneous listing of a conviction for Operation of a Clandestine Laboratory as a

predicate offense to enhance his sentence under U.S.S.G. § 4B1.1(a). He alleged that

he was actually innocent of this offense because he had instead been convicted of

Unlawful Possession of Laboratory Equipment or Supplies.

      Mr. Messer attached to his § 2255 motion a March 31, 2017 order from the

Fifth District Court of the State of Utah directing that steps be taken to change the

listing of his conviction in the NCIC database from Operation of a Clandestine

Laboratory to reflect that he was actually convicted of Unlawful Possession of

Laboratory Equipment or Supplies. In the same order, the state court denied his

“Motion to Reduce the Severity of Offense,” a first degree felony, finding “no legal

basis in reducing the degree of offense in this matter.” ROA, Vol. I at 82.

      The district court dismissed Mr. Messer’s § 2255 motion because he had not

filed it within one year after his federal conviction became final, as 28 U.S.C.

§ 2255(f)(1) requires. The court rejected Mr. Messer’s argument that the limitations

period began when he received the state court’s order on March 31, 2017, “the date

on which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4). It found

that Mr. Messer knew long before March 31, 2017, that he had not been convicted of

                                           3
Operation of a Clandestine Laboratory. To support this finding, the court cited Mr.

Messer’s initial § 2255 motion, filed in June 2014, which included his declaration

that he told counsel of this fact in June or July of 2013, before he was sentenced.

The court also noted that his initial § 2255 motion argued that his conviction for

Unlawful Possession of Laboratory Equipment or Supplies was not a predicate crime

for a career offender sentencing enhancement. The court further said that Mr. Messer

had failed to show or even address how any of the other claims in his § 2255 motion

were timely.

      The district court also rejected Mr. Messer’s argument that, because he was

actually innocent of Operation of a Clandestine Laboratory, he should receive

equitable tolling of the one-year statute of limitations. The court stated that (1) Mr.

Messer did not contend he was actually innocent of the federal crime of conviction—

distribution of methamphetamine—and (2) he did not contest that he had previously

been convicted for Unlawful Possession of Laboratory Equipment or Supplies. It

said the latter is a predicate controlled substance offense for career offender

enhancement under U.S.S.G § 4B1.1(a), citing U.S.S.G. § 4B1.2(b) and Application

Note 1.

      The district court therefore denied the § 2255 motion. It also denied a COA.

Judgment was entered on April 11, 2018. Mr. Messer filed a motion for




                                            4
reconsideration under Federal Rule of Civil Procedure 59(e), which the district court

denied.3

                                    II. DISCUSSION

       When a district court dismisses a § 2255 motion on procedural grounds, we

will issue a COA only if the movant shows it is “debatable whether the petition states

a valid claim of the denial of a constitutional right and . . . whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

“Where a plain procedural bar is present and the district court is correct to invoke it

to dispose of the case, a reasonable jurist could not conclude either that the district

court erred in dismissing the petition or that the petitioner should be allowed to

proceed further.” Id.

       Mr. Messer asserts in his brief that “none of the three offenses relied on by the

District Court qualify for the Career Offender predicates under U.S.S.G. § 4B1.1.”

Aplt. Br. at 3d. We do not consider the merits of that argument here because the

district court dismissed the § 2255 motion as untimely and Mr. Messer seeks a COA

to appeal that ruling. As to that issue, we discern two main arguments in Mr.

Messer’s request for COA. First, he argues that his § 2255 motion was timely filed

under § 2255(f)(4). Second, he contends that he should receive equitable tolling of

       3
         On June 11, 2018, Mr. Messer filed a timely notice of appeal from the April 11,
2018 judgment. See Fed. R. App. P. 26(a)(1)(C). Because the district court denied the
motion to reconsider within the 60 days to appeal, and because the notice of appeal does
not include the denial of the motion to reconsider, and because Mr. Messer does not
address the denial of the motion to reconsider in his brief, we conclude that only the
original judgment is properly before this court. See Fed. R. App. P. 3(c)(1)(B).

                                             5
the statute of limitations because (1) he asked in 2014 for dismissal without prejudice

of his first § 2255 motion to enable him to develop facts to support his claim and (2)

he is actually innocent of the offense of Operation of a Clandestine Laboratory.

                                   A. Section 2255(f)(4)

      The district court held that Mr. Messer’s § 2255 motion was untimely under

§ 2255(f), which provides:

      A 1-year period of limitation shall apply to a motion under this
      section. The limitation period shall run from the latest of—

      (1) the date on which the judgment of conviction becomes final;

      (2) the date on which the impediment to making a motion created by
          governmental action in violation of the Constitution or laws of
          the United States is removed, if the movant was prevented from
          making a motion by such governmental action;

      (3) the date on which the right asserted was initially recognized by
          the Supreme Court, if that right has been newly recognized by
          the Supreme Court and made retroactively applicable to cases on
          collateral review; or

      (4) the date on which the facts supporting the claim or claims
          presented could have been discovered through the exercise of
          due diligence.

      The court determined that § 2255(f)(1) applied to Mr. Messer’s motion—the

date of the final judgment of conviction. Because Mr. Messer did not file a direct

appeal, his conviction became final when the time expired to file his direct appeal—

14 days after judgment was entered on November 13, 2013, which was November 27,

2013. See Fed. R. App. P. 4(b)(1)(A)(i); Murphy v. United States, 634 F.3d 1303, 1307

(11th Cir. 2011) (“[W]hen a defendant does not appeal his conviction or sentence, the


                                            6
judgment of conviction becomes final when the time for seeking that review expires.”);

United States v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008) (same). Mr. Messer filed

his § 2255 motion on March 20, 2018, four and one-half years past the deadline.

      Mr. Messer has not contested the untimeliness of his motion under

§ 2255(f)(1). He instead contended in district court and argues again here that his

motion should be considered under § 2255(f)(4) because he filed it within one year

after “the facts supporting the claim . . . could have been discovered through the

exercise of due diligence.” But that is not so because he not only could have

discovered the error in the PSR listing but actually did discover it years before he

filed his § 2255 motion.

      First, Mr. Messer was aware that he was convicted in 2001 of Unlawful

Possession of Laboratory Equipment or Supplies long before November 2013 when

he was sentenced in his federal case as a career offender, and even longer before he

filed his § 2255 motion in 2018. Documents regarding the state conviction, attached

as Exhibit A to his appellate brief and Exhibit D to his § 2255 motion, make this

clear. Although these exhibits show that the state court’s initial judgment of

December 20, 2001 stated that Mr. Messer pled guilty to Operation of a Clandestine

Laboratory, Attach. Aplt. Br. at 35-37, they also show the court filed amended

judgments on February 5, 2002, and again on March 1, 2005, both stating that he had




                                           7
been convicted of Unlawful Possession of Laboratory Equipment or Supplies. ROA,

Vol. I at 77-80; ROA, Vol. I at 73-76.4

       In addition, his declaration, attached as Exhibit C to his § 2255 motion, states

that he told his attorney in this case sometime in June or July of 2013 that he “was

not convicted for Operation of a Clandestine Laboratory, but for Unlawful Possession

of Laboratory Equipment or Supplies.” ROA, Vol. I at 69. Mr. Messer therefore

knew the true nature of his 2001 conviction before he was sentenced as a career

offender.

       Second, the record supports that Mr. Messer was aware at the time of his

sentencing that the PSR incorrectly listed his 2001 conviction as Operation of

Clandestine Laboratory rather than Unlawful Possession of Laboratory Equipment or

Supplies. At the sentencing hearing on November 7, 2013, the following colloquy

occurred:

       THE COURT: Did you have a chance to review and discuss [the
       PSR] in detail with Mr. Messer?

       MR. BRIDGE: Yes, I did.

       THE COURT: Mr. Messer, did you have a sufficient amount of
       time to discuss the presentence report with Mr. Bridge?

       4
         In his brief, Mr. Messer “contends that he did not discover the ‘fact’ to prove via
‘documentation’ that he was not convicted by the State of Utah for ‘Operation of a
Clandestine Laboratory’ . . . in that case, until March 17, 2017, when he received from
the State Court for the first time both an Order to correct the court’s record to reflect the
correct conviction information, along with a few ‘All’ of its judgments and amended
judgments.” Aplt. Br. at 3o. We disagree. The state court’s amended judgments in 2002
and 2005 document that Mr. Messer was convicted of Unlawful Possession of Laboratory
Equipment or Supplies and not for Operation of a Clandestine Laboratory.

                                             8
      MR. MESSER: Yes, Your Honor.

ROA, Vol. II at 20. And despite Mr. Messer’s statement in his aforementioned

declaration that he previously had told him otherwise, his counsel referred at the

sentencing hearing to a prior “conviction for operation of a clandestine lab.” Id. at

31.

      At that point, Mr. Messer had the information he needed to allege his

ineffective assistance claim. He was on notice that his 2001 conviction was for

Unlawful Possession of Laboratory Equipment or Supplies; that the PSR instead had

listed the offense as Operation of a Clandestine Laboratory; and that his counsel had

failed to correct, much less object to, the erroneous listing in the PSR. This much

was reflected in his June 2014 § 2255 motion, the one that was dismissed without

prejudice. It alleged that his conviction for Possession of Laboratory Equipment or

Supplies was not a predicate crime for a career offender sentencing enhancement.

      Third, further corroborating that Mr. Messer knew of the factual basis for his

ineffective assistance claim for much longer than the statute of limitations period

were his efforts to correct the NCIC database regarding his 2001 conviction. The

Fifth District Court for the State of Utah docket for the case resulting in that

conviction shows that on May, 6, 2016, Mr. Messer filed a “Motion to Correct

Invalid Conviction Information Submitted to The National Crime Information

Center.” Attach. Aplt. Br. at 64. This motion and an accompanying motion to reduce

his sentence resulted in the state court’s March 31, 2017 ruling denying a sentence


                                            9
reduction and stipulating that the conviction in the NCIC database should be changed

to Unlawful Possession of Laboratory Equipment or Supplies.

      Mr. Messer seems to suggest that because the state court did not order a

correction of the NCIC database until its order of March 31, 2017, he lacked the

factual basis for his § 2255 motion until then. Aplt. Br. at 3l, 3o. But the record—

the state court amended judgments, his declaration, his federal court sentencing

transcript, and his motion to correct the NCIC database—shows he had the

information he needed to allege his ineffective assistance claim long before the state

court issued its March 31, 2017 order and years before he filed his § 2255 motion.5

This conclusion is not reasonably debatable. Mr. Messer’s § 2255(f)(4) argument

does not merit a COA.

                                   B. Equitable Tolling

      Mr. Messer also argues that the statute of limitations should be equitably

tolled. First, he claims that the one-year deadline should be excused because he filed

a § 2255 motion in June 2014 and asked to have it dismissed without prejudice so he

could develop the facts to support his claim. Second, he contends that he should

receive equitable tolling because he is actually innocent of Operation of a

Clandestine Laboratory.


      5
         Mr. Messer recounts his diligence under § 2255(f)(4) in trying to obtain
documents to support his § 2255 motion. Aplt. Br. at 3p-3r. But he had knowledge of
the facts underlying his ineffective assistance of counsel claim, including the amended
judgments in the Fifth District Court stating that he was convicted in 2001 of Unlawful
Possession of Laboratory Equipment or Supplies, to file his motion in a timely manner.

                                           10
   Dismissal of 2014 Motion Without Prejudice

      “[W]e review the district court's decision on equitable tolling of the limitation

period for an abuse of discretion.” Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.

2003). To qualify for equitable tolling, Mr. Messer must show “(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in

his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)

(quotations omitted). He has not made this showing.

      The dismissal of Mr. Messer’s first § 2255 motion without prejudice in 2014

does not rescue his 2018 motion from § 2255(f)’s time bar. As previously explained,

he had in hand more than adequate information to file a timely § 2255 motion

alleging that his counsel was ineffective for failure to object to the sentencing court’s

reliance on the erroneous listing in the PSR of his 2001 conviction. His efforts to

obtain documents to support his claim, however diligent, were not necessary to

establish a factual basis to assert his claim. Rather than seeking dismissal without

prejudice of his § 2255 motion to pursue additional fact investigation, he could have

asked for a stay to do so or have requested the district court to allow him “to conduct

discovery under the Federal Rules of Criminal or Civil Procedure” pursuant to Rule 6

of the Rules Governing Section 2255 Proceedings for the United States District

Courts.

   Actual innocence

      Equitable tolling also is appropriate when a prisoner is actually innocent.

Burger, 317 F.3d at 1141. To establish a credible claim of actual innocence, an

                                           11
applicant must support his claim with “new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial,” Schlup v. Delo, 513 U.S. 298, 324 (1995),

and show “that it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence,” id. at 327. Mr. Messer seeks to

apply this standard to his 2001 conviction.

       Mr. Messer recognizes that the PSR’s listing of the 2001 offense “was a

clerical error,” Aplt. Br. at 3e, but he argues that because he is actually innocent of

Operation of a Clandestine Laboratory, the district court should have equitably tolled

the one-year statute of limitations. When a clerical error results in the imposition of a

sentence that is longer than the sentence would have been without the error, an argument

based on actual innocence and the need to avoid a miscarriage of justice may justify

lifting the procedural bar caused by failure to timely file a § 2255 motion. See Mobley v.

United States, 974 F. Supp. 553, 558 (E.D. Va. 1997). But that is not the case here.

       The district court rejected Mr. Messer’s actual innocence argument because he

does not contend that he was factually innocent of Unlawful Possession of

Laboratory Equipment or Supplies, and because this offense would have qualified as

a predicate for Mr. Messer’s career offender status. Mr. Messer disagrees with the

district court’s analysis of whether his 2001 conviction should qualify as a career

offender predicate offense, but we reject his actual innocence equitable tolling

argument for two additional reasons. See Davis v. Roberts, 425 F.3d 830, 834 (10th



                                            12
Cir. 2005) (COA may be denied on a ground supported by the record even if the district

court did not rely on it.).

       First, Mr. Messer’s actual innocence argument lacks merit in light of the record of

the state court proceedings underlying his 2001 conviction. His conviction for Unlawful

Possession of Laboratory Equipment or Supplies required proof that the defendant

“possess[ed] laboratory equipment or supplies with the intent to engage in a clandestine

laboratory operation.” Utah Code Ann. § 58-37d-4(1)(b) (1999).6 Drawing from this

statute, Jury Instruction 14-A at Mr. Messer’s trial provided that, before the jury could

find him “guilty of the offense of Unlawful Possession of Laboratory Equipment or

Supplies, the State must prove . . . beyond a reasonable doubt . . . :

       1. That the Defendant acted knowingly and intentionally;

       2. That the Defendant did:

               (a) possess laboratory equipment or supplies with the intent to
                   engage in a clandestine methamphetamine laboratory
                   operation; or

               (b) possess a controlled substance precursor with the intent to
                   engage in a clandestine methamphetamine laboratory
                   operation.”
Attach. Aplt. Br. at 52. A violation of § 58-37d-4(1)(b) is a second degree felony.




       6
        The Utah Legislature amended this section after Mr. Messer’s conviction but left
paragraph (1)(b) unchanged. Compare Utah Code Ann. § 58-37d-4(1)(b) (1999), with
Utah Code Ann. § 58-37d-4(1)(b) (2018). We cite the 1999 Code.

                                              13
       Instruction 14-A then said that if the jury found Mr. Messer guilty of Unlawful

Possession of Laboratory Equipment or Supplies, it should consider “whether or not said

acts took place under the following conditions, to wit:

       (a) The Defendant illegally possessed, transported, or disposed of
           hazardous or dangerous material while transporting, or causing to
           be transported, materials in furtherance of a clandestine
           laboratory operation, that created a substantial risk to human
           health or safety or danger to the environment.

       (b) The intended methamphetamine laboratory operation take [sic]
           place within 500 feet of a residence.

       (c) Said clandestine laboratory operation was for the production of
           methamphetamine base.”

As set forth in Utah Code § 58-37d-5, “[a] person who violates Subsection 58-37d-

4[(1)(b)] is guilty of a first degree felony if the trier of fact also finds any one of the

following conditions occurred in conjunction with that violation.” The conditions listed

in the statute—§58-37d-5(1)(c), (d), and (g)—correspond to the conditions listed in the

jury instruction.7

       The state court amended judgments in 2002 and 2005 said that a jury had

convicted Mr. Messer of Unlawful Possession of Laboratory Equipment or Supplies and

that his conviction was enhanced to a first degree felony because the jury also found

“beyond a reasonable doubt” the three conditions listed above. ROA, Vol. I at 77-80;

ROA, Vol. I at 73-76. Accordingly, considering the listing of Operation of a

       7
       The Utah Legislature amended this section after Mr. Messer’s conviction; the
amendment deleted a paragraph not at issue here, causing paragraph (1)(g) to be
renumbered as paragraph (1)(f). Compare Utah Code Ann. § 58-37d-5 (1999), with Utah
Code Ann. § 58-37d-5 (2018).

                                               14
Clandestine Laboratory in the PSR in the context of the state court record of Mr.

Messer’s 2001 conviction, we conclude that any error in the PSR’s description of Mr.

Messer’s offense was not material, and his claim of actual innocence rings hollow.

      Second, Mr. Messer’s argument suffers from an additional fundamental

problem. Under U.S.S.G. § 4B1.1(a), “[a] defendant is a career offender if . . . the

defendant has at least two prior felony convictions of either a crime of violence or a

controlled substance offense.” As the district court stated in its order denying the

§ 2255 motion, “[t]he [PSR] determined that Petitioner qualified as a career offender

based on three prior convictions.” Even if the 2001 conviction were excluded from

consideration, two predicate convictions remain. Mr. Messer would like to challenge

whether they were valid predicates, but he filed his § 2255 motion too late, and he

lacks a viable equitable tolling argument to allow an untimely challenge to his

sentence based on those offenses.

      Because reasonable jurists would not debate that the district court acted within

its discretion to deny equitable tolling, we deny a COA.

                                   III. CONCLUSION

      We deny a COA and dismiss this matter.

                                             Entered for the Court


                                             Scott M. Matheson, Jr.
                                             Circuit Judge




                                            15
