F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 8 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 01-1246
v. (D.C. Nos. 01-N-261, 98-CR-52-N)
(District of Colorado)
EDWARD E. HERRING, JR.,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
This case is before the court on Edward Herring’s request for a certificate
of appealability (“COA”). Herring seeks a COA so that he can appeal the district
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The 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.
court’s denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B)
(providing that no appeal may be taken from a final order in a § 2255 proceeding
unless the movant first obtains a COA). Because Herring has not “made a
substantial showing of the denial of a constitutional right,” this court denies his
request for a COA and dismisses this appeal. See id. § 2253(c)(2).
Herring pleaded guilty in federal district court to three counts of aiding and
abetting in a bank robbery. In his § 2255 motion, Herring contends that the
district court erred when it increased his offense level by two points pursuant to
United States Sentencing Guideline § 2B3.1(b)(4)(B). As the district court
pointed out in denying Herring’s § 2255 motion, however, Herring’s judgment of
conviction was entered on the docket on July 8, 1998, and became final on July
22, 1998. Furthermore, Herring never filed a direct appeal. Accordingly,
Herring’s instant § 2255 motion, which was filed February 6, 2001, was filed
more than two years outside of the one-year limitation period set out in § 2255
para. 6. Because Herring did not argue that the limitations period should be
equitably tolled, the district court denied Herring’s petition on the ground that it
was untimely. In so doing, the district court noted that even if Herring’s § 2255
motion was not untimely, his sentencing claim would be procedurally barred
because it was not raised in a direct appeal, see United States v. Frady, 456 U.S.
152, 165 (1982), and was, in any event, meritless.
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To be entitled to a COA, Herring must show “that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.”
See Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district
court dismisses a habeas petition on procedural grounds, a petitioner is entitled to
a COA only if he shows both that reasonable jurists would find it debatable
whether he had stated a valid constitutional claim and debatable whether the
district court's procedural ruling was correct). Herring has utterly failed to carry
his burden. In fact, he does not even address in his filings in this court the
district court’s conclusion that his § 2255 motion is time-barred or the question of
equitable tolling. Because Herring does not contest the district court’s conclusion
that his § 2255 motion is time-barred and does not offer any ground upon which
the limitations period could be equitably tolled, this court DENIES his request
for a COA for substantially those reasons set out in the district court order filed
March 21, 2001, and DISMISSES this appeal. Herring’s request to proceed on
appeal in forma pauperis is DENIED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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