F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 19, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4146
(D. Utah)
ASENCION MICHEL-GALAVIZ, (D.C. Nos. 2:05-CV-00384-JTG and
2:98-CR-601-001-JTG)
Defendant-Appellant.
ORDER
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See F ED . R. A PP . P. 34(a); 10 TH C IR . R. 34.1(G).
Asencion Michel-Galaviz, a federal prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to appeal the district court’s decision
dismissing as untimely his 28 U.S.C. § 2255 petition for a writ of habeas corpus.
We deny Mr. Michel-Galaviz’s application for a COA and dismiss this appeal.
I. BACKGROUND
On May 4, 1999, Mr. Michel-Galaviz pleaded guilty in a four-count
indictment to (a) illegal entry of a deported alien, in violation of 8 U.S.C. § 1326;
(b) possession of a controlled substance with intent to distribute, in violation of
21 U.S.C. § 841(a)(1); (c) being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1); and (d) being an illegal alien in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(5). The district court sentenced him to 151
months’ imprisonment, and it entered judgment on July 28, 1999. He did not file
a direct appeal challenging his sentence or the underlying conviction.
On April 27, 2005, Mr. Michel-Galaviz filed a petition in district court to
vacate his sentence under 28 U.S.C. § 2255. He maintained that the district court
erred when it used a prior robbery conviction as the basis for a career-offender
enhancement. The district court dismissed the petition, concluding that the
“claim is untimely and barred as a matter of law, being far beyond the period of
limitation set forth in 28 U.S.C. § 2255.” Rec. doc. 5, at 2 (Order, filed May 24,
2005). The district court did not act on the issuance of a COA, and a COA was
thus deemed denied under our Emergency General Order of October 1, 1996.
II. DISCUSSION
We review Mr. Michel-Galaviz’s petition under the Antiterrorism and
Effective Death Penalty Act of 1996. We may issue a COA and entertain his
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appeal only if he “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “[W]hen the district court denies a habeas
petition on procedural grounds,” as is the case here, we issue a COA “if the
prisoner shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right, and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000).
The decision to grant a COA turns on the application of 28 U.S.C. § 2255,
which provides that a habeas petition must be filed within one year 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 district court entered judgment on Mr. Michel-Galaviz’s conviction on
July 28, 1999. Because he did not appeal his sentence, his judgment of conviction
became final ten days later, when his claim could no longer be subject to
appellate review. See F ED . R. A PP . P. 4(b)(1)(A) (“In a criminal case, a
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defendant’s notice of appeal must be filed in the district court within 10 days after
the later of: (i) the entry of either the judgment or the order being appealed; or (ii)
the filing of the government’s notice of appeal.”). Mr. Michel-Galaviz did not
file his habeas petition in district court until April 2005, well after the one-year
limitation period under subsection (1) had expired.
Furthermore, Mr. Michel-Galaviz offers no arguments under subsections
(2), (3), or (4) of § 2255, and he does not contend that the one-year limitation
period should be statutorily or equitably tolled.
III. CONCLUSION
Reasonable jurists would not debate the district court’s conclusion that Mr.
Michel-Galaviz’s habeas petition was untimely. Accordingly, we DENY his
application for a COA and DISMISS the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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