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

                                     TENTH CIRCUIT                            July 1, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                            No. 13-6282
                                                 (D.C. Nos. 5:13-CV-00569-R & 5:10-CR-
 DEAN LEROY FREERKSEN, III,                                     00188-R-1)
                                                               (W.D. Okla.)
           Respondent - Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



       Dean Leroy Freerksen, III, requests a Certificate of Appealability (“COA”) to

appeal the district court’s denial of his habeas motion filed under 28 U.S.C. § 2255. We

deny a COA and dismiss the appeal.

                                             I

       Freerksen was convicted by a jury on five counts of producing child pornography


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
and sentenced to fifty years’ imprisonment. He unsuccessfully appealed his conviction

and sentence to this court. United States v. Freerksen, 457 F. App’x 769 (10th Cir. 2012)

(unpublished). Freerksen’s conviction became final when the Supreme Court denied

certiorari on June 18, 2012. He filed a § 2255 motion in the district court on May 27,

2013, alleging prosecutorial misconduct, ineffective assistance of counsel, and clear

error. Freerksen’s motion alleged that he had not raised these claims previously due to

ineffective assistance of appellate counsel. At the same time he filed his motion,

Freerksen sought leave to amend it. In an order dated June 14, 2013, the district court

ruled that Freerksen would have until June 18, 2013, the one-year filing deadline under

the Antiterrorism and Effective Death Penalty Act of 1996, to amend. It granted

Freerksen ninety days to file a brief in support of the three claims identified in his initial

motion.

       Freerksen filed a “Memorandum in Support of Motion to Vacate, Set Aside or

Correct a Sentence.” The government filed a response, urging the district court to reject

several of Freerksen’s claims as untimely and arguing that his other claims were

procedurally barred or meritless. Freerksen then filed a document styled “Petitioner’s

Rebuttal.” The district court entered an order denying Freerksen’s § 2255 motion on

November 15, 2013, and denied a COA on December 13, 2013.

                                              II

       Freerksen seeks a COA on one issue, arguing that the district court “err[ed] in


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having denied appellant’s right to amend his § 2255 motion.” A COA is a prerequisite to

an appeal. 28 U.S.C. § 2253(c)(1)(B). We will grant a COA “only if the applicant has

made a substantial showing of the denial of a constitutional right.” § 2253(c)(2).

Accordingly, Freerksen must show “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) (quotations omitted). Because Freerksen

proceeds pro se, we construe his filings liberally; however, we will not “assume the role

of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotation

omitted).

       Freerksen claims that the district court denied his motion to amend his § 2255

motion. This is incorrect. The district court ruled that Freerksen could expand his § 2255

motion until the expiration of the one-year statute of limitations.1 It further granted him

ninety days in which to file a brief explaining his original claims. Freerksen now alleges

that the district court violated Fed. R. Civ. P. 15 by refusing to allow him to amend after

the one-year period expired.


       1
         In its order denying Freerksen’s § 2255 motion, the district court referred to the
limitations period in 28 U.S.C. § 2244, which applies to habeas petitions by “person[s] in
custody pursuant to the judgment of a State court.” § 2244(d)(1). The relevant
limitations period for claims by prisoners in custody pursuant to a federal court judgment
is found in 28 U.S.C. § 2255(f). But the one-year statute of limitations is identical for
both state and federal prisoners.


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       The district court’s decision comports with our holding in United States v.

Espinoza-Saenz, 235 F.3d 501 (10th Cir. 2000). In that case, we considered the

relationship between Rule 15(c) and a § 2255 motion. Espinoza-Saenz, 235 F.3d at 503-

05. We concluded:

       [P]ursuant to Rule 15(c), an untimely amendment to a § 2255 motion
       which, by way of additional facts, clarifies or amplifies a claim or theory in
       the original motion may, in the District Court’s discretion, relate back to the
       date of the original motion if and only if the original motion was timely
       filed and the proposed amendment does not seek to add a new claim or to
       insert a new theory into the case.

Id. at 505 (quotation and alteration omitted). Consistent with Espinoza-Saenz, the district

court allowed Freerksen to “clarif[y] or amplif[y]” the claims raised in his original § 2255

motion. The court reviewed those claims and determined that the motion lacked merit. It

refused to consider one claim raised by Freerksen, which Freerksen himself conceded

was not part of his original motion. We therefore conclude that Freerksen has failed to

raise an issue debatable among reasonable jurists.

                                             III

       For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Freerksen’s motion to proceed in forma pauperis is GRANTED.

                                          Entered for the Court



                                          Carlos F. Lucero
                                          Circuit Judge


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