F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 14 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Respondent - Appellee,
v. No. 98-1395
(D. Ct. No. 98-S-1707)
TAALIBDIN ABDUL AL-AMIN, also (D. Colo.)
known as Troy Allen Outlaw,
Petitioner - Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Petitioner, acting pro se, appeals a district court order denying his motion
for reconsideration of an order of dismissal that construed his petition as a motion
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
pursuant to 28 U.S.C. § 2255 (1994 & Supp. 1998) to vacate his sentence.
In this court, petitioner Al-Amin seeks a certificate of appealability and has
filed a motion for voluntary dismissal of his appeal. We deny a certificate of
appealability and deny the motion for a voluntary dismissal.
Petitioner Al-Amin has proceeded pro se throughout the course of this
action, which he originally filed in the district court as a “Notice & Ex Parte
Petition Pursuant to FRCP Rule 60(b).” He argued that the government
fraudulently obtained his guilty plea and that the court should allow him to
withdraw the guilty plea based on this circuit’s panel opinion in United States v.
Singleton, 144 F.3d 1343 (10th Cir. 1998), rev’d en banc, 165 F.3d 1297 (10th
Cir. 1999).
On October 20, 1994, petitioner pled guilty in the District of Colorado to an
indictment and an information charging a criminal forfeiture. The district court
sentenced him to a term of 120 months imprisonment, followed by five years of
supervised release. Petitioner did not file a direct appeal from that conviction and
sentence. Instead, he filed for a writ of habeas corpus pursuant to 28 U.S.C. §
2241 in the United States District Court for the Southern District of Illinois,
claiming that his federal sentence was unlawful. The district court in Illinois
determined that because petitioner was attacking his federal sentence, he should
have filed a motion under 28 U.S.C. § 2255. The court dismissed the petition
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without prejudice for lack of jurisdiction. The United States Court of Appeals for
the Seventh Circuit summarily affirmed the dismissal. The Seventh Circuit
further denied petitioner’s motion for reconsideration. Mr. Al-Amin filed a
petition for a writ of certiorari which the United States Supreme Court denied in
Al-Amin v. Seiter, 118 S. Ct. 1313 (1998). The Supreme Court also denied
petitioner’s motion for rehearing. See Al-Amin v. Seiter, 118 S. Ct. 1691 (1998).
Following the Supreme Court’s denial of certiorari and reconsideration, Mr.
Al-Amin filed the “Notice & Ex Parte Petition Pursuant to F.R.C.P. 60(b)” at
issue here in the District of Colorado. The district court construed Mr. Al-Amin’s
petition liberally as a motion pursuant to 28 U.S.C. § 2255 (1994 & Supp. 1998)
and denied the petition as barred by the one-year statute of limitations in § 2255.
Petitioner subsequently filed a “Motion for Reconsideration” which the district
court liberally construed as a Fed. R. Civ. Pro. 60(b) motion seeking relief from
judgment. The district court denied this motion, restating its reasons contained in
the order of dismissal. We affirm.
We, like the district court, construe appellant’s filings in this court liberally
because he represents himself. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21
(1972). The district court generously construed the motion for reconsideration as
a motion seeking relief from judgment pursuant to Fed. R. Civ. P. 60(b). We
agree that petitioner is not entitled to relief under Fed. R. Civ. P. 60(b) and
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further agree that the motion in the district court was properly construed as a
motion brought pursuant to 28 U.S.C. § 2255. A prisoner whose conviction and
sentence became final on or before April 24, 1996 cannot seek relief pursuant to §
2255 unless he or she filed the motion before April 24, 1997. See United States
v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Clearly, Mr. Al-Amin’s
conviction became final well before April 24, 1996, and is time-barred by the
one-year limitations period.
This court has reviewed petitioner’s request for a certificate of
appealability and appellate brief, the district court order, and the entire record on
appeal. Our review demonstrates that the district court’s orders denying relief are
not deserving of further proceedings, debatable among jurists of reason, or subject
to different resolution on appeal. See Barefoot v. Estelle, 463 U.S. 880, 893
(1983). Accordingly, petitioner has not made a substantial showing of the denial
of a constitutional right and is not entitled to a certificate of appealability. 28
U.S.C. § 2253(c)(1)(b) (1994 & Supp. 1998). Further, because we have acted on
the request for a certificate of appealability, we deny appellant’s motion for
voluntary dismissal.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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