                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 1, 2008
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 08-4008
       v.                                                 (D. Utah)
                                                 (D.C. No. 07-CV-955-DAK)
ANTHONY DELLIS SPENCER,

              Defendant - Appellant.


                  ORDER GRANTING PANEL REHEARING


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      This matter is before the court on Anthony D. Spencer’s request for panel

rehearing and the United States’ response thereto. Upon consideration of the

parties’ filings and for those reasons set out below, this court grants Spencer’s

request for rehearing, withdraws our prior order denying Spencer’s request for a

certificate of appealability, and substitutes in its place the attached order and

judgment.

                                       ENTERED FOR THE COURT




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

                                                                    July 1, 2008

UNITED STATES OF AMERICA,                                       Elisabeth A. Shumaker
                                                                    Clerk of Court
               Plaintiff - Appellee,
                                                        No. 08-4008
          v.                                              (D. Utah)
                                                 (D.C. No. 07-CV-955-DAK)
ANTHONY DELLIS SPENCER,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.



      This matter is before the court on Anthony D. Spencer’s pro se request for

a certificate of appealability (“COA”). Spencer seeks a COA so he can appeal the

district court’s denial of his 28 U.S.C. § 2255 motion. 28 U.S.C. § 2253(c)(1)(B).

Because Spencer has “made a substantial showing of the denial of a constitutional

right,” id. § 2253(c)(2), this court grants his request for a COA, reverses the

order of the district court dismissing Spencer’s § 2255 motion as untimely, and



      *
        This order and judgment 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.
remands the matter to the district court for further proceedings consistent with

this opinion.

      As set out in this court’s decision on direct appeal, Spencer pleaded guilty

to conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846.

United States v. Spencer, 192 F. App’x 718, 719 (10th Cir. 2006). He was

sentenced to 360 months’ imprisonment. Id. at 719-20. This court affirmed his

sentence on August 9, 2006. Id. at 718. Spencer filed the instant § 2255 motion

on December 10, 2007, raising claims of, inter alia, Brady violations 1 on the part

of the prosecution and ineffective assistance of trial counsel with regard to the

negotiation and entry of his guilty plea and his sentencing proceeding. The

district court dismissed Spencer’s motion on the ground that it was untimely. The

district court noted 28 U.S.C. § 2255(f)(1) provides for a one-year limitations

period from the date on which a conviction becomes final. The district court

concluded Spencer’s conviction became final on November 9, 2006, when the

ninety-day period for filing a petition for a writ of certiorari passed without

Spencer requesting Supreme Court review. See United States v. Burch, 202 F.3d

1274, 1278 (10th Cir. 2000). Because, according to the district court, Spencer’s

conviction became final on November 9, 2006, he had until November 9, 2007 to

file his § 2255 motion. 28 U.S.C. § 2255(f)(1). As Spencer did not file that

motion until December 10, 2007, the district court concluded the motion was

      1
          Brady v. Maryland, 373 U.S. 83 (1963).

                                         -2-
untimely unless Spencer was entitled to have the limitations period equitably

tolled. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Because Spencer

had failed to demonstrate he had diligently pursued the claims in his § 2255

motion, the district court exercised its discretion and denied equitable tolling.

Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (holding that 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”).

      The granting of a COA is a jurisdictional prerequisite to Spencer’s appeal

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

(2003). To be entitled to a COA, Spencer must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this

showing, Spencer must demonstrate that “reasonable jurists could debate whether

(or, for that matter, agree that) the [motion] 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)

(quotations omitted). Where, as here, the district court denies a § 2255 motion on

procedural grounds without reaching the underlying constitutional claims, the

movant is not entitled to a COA unless he can show both that “jurists of reason

would find it debatable whether the [motion] states a valid claim of the denial of a




                                          -3-
constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id.

      This court’s review of the underlying merits of Spencer’s claims is

necessarily limited because his motion was dismissed before he had an

opportunity to develop the factual and legal bases of his claims in the district

court, the district court did not rule on the merits of those claims, and the parties

have not briefed the merits on appeal. Therefore, “[w]e will only take a quick

look at the [§ 2255 motion] to determine whether [Spencer] has facially alleged

the denial of a constitutional right.” Gibson v. Klinger, 232 F.3d 799, 803 (10th

Cir. 2000) (quotations and original alterations omitted). After taking the requisite

“quick look” at Spencer’s § 2255 motion, this court concludes he has satisfied the

first prong of the COA analysis because “jurists of reason would find it debatable

whether the [motion] states a valid claim of the denial of a constitutional right.”

Slack, 529 U.S. at 484. Specifically, at least one of Spencer’s claims debatably

states a facially valid claim of the denial of a constitutional right.

      Having concluded Spencer satisfies the first requirement for obtaining a

COA, we turn to the propriety of the district court’s procedural ruling. As noted

above, this court resolved Spencer’s direct appeal on August 9, 2006. Spencer,

192 F. App’x at 718. The district court concluded Spencer did not file a petition

for a writ of certiorari. Based on that conclusion, the district court determined

Spencer’s conviction became final, for purposes of the limitations period set out

                                           -4-
in 28 U.S.C. § 2255(f)(1), on November 9, 2006, when the ninety-day period for

filing a petition for a writ of certiorari passed without Spencer requesting

Supreme Court review. See Burch, 202 F.3d at 1278. Because, Spencer did not

file his § 2255 motion until December 10, 2007, the district court concluded the

motion was untimely.

      As the United States recognizes in its response to Spencer’s petition for

rehearing, the district court erred in concluding Spencer did not file a petition for

a writ of certiorari. The United States nevertheless argues Spencer’s petition for

a writ of certiorari did not affect the finality of his conviction because the

certiorari petition was not timely filed. In support of this assertion, the United

States cites to an entry in this court’s docket in case number 04-4307, Spencer’s

direct appeal. It is certainly true that in an entry dated November 17, 2006, this

court’s docket in case number 04-4307 notes as follows: “Petition for writ of

certiorari filed on 11/13/06 by Appellant Anthony Dellis Spencer. Supreme Court

Number 06-7697.” Unfortunately, that entry in this court’s docket is not accurate.

In an entry dated November 13, 2006, the Supreme Court’s docket makes clear

that Spencer’s certiorari petition was timely filed on November 6, 2006. 2 That

Spencer’s petition for a writ of certiorari was timely filed is confirmed by the

      2
       Thus, although Spencer’s petition for a writ of certiorari was entered on
the Supreme Court’s docket on November 13, 2006, the petition was filed on
November 6, 2006. We assume the discrepancy in this court’s docket flows from
a mistaken use of the date the Supreme Court entered the certiorari petition on its
docket, rather than the date the certiorari petition was filed.

                                          -5-
Supreme Court’s denial of the writ rather than its dismissal. See Rules of the S.

Ct. 13.2 (providing that the clerk of the Supreme Court shall not file any

certiorari petition that is not timely filed). Thus, Spencer’s conviction became

final on December 11, 2006, the date the Supreme Court denied his timely filed

certiorari petition; he had until one year from that date, December 11, 2007, to

file his § 2255 motion. 28 U.S.C. § 2255(f); United States v. Gabaldon, 522 F.3d

1121, 1123 (10th Cir. 2008). Spencer’s § 2255 motion, which was filed on

December 10, 2007, was thus timely filed and the district court erred in

concluding it was time barred under § 2255(f).

      For those reasons set out above, this court GRANTS Spencer a COA,

REVERSES the district court’s dismissal of the motion as untimely, and

REMANDS the matter to the district court for further proceedings consistent with

this opinion.

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge




                                         -6-
