F I L E D
United States Court of Appeals
Tenth Circuit
June 9, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-4138
v. (D. of Utah)
JO SE V ELA SQ U EZ-M EZA , (D.C. Nos. 05-CV-402-TC and
2:96-CR-149-TC)
Defendant-Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **
Jose Velasquez-M eza seeks a Certificate of Appealability (COA) to appeal
the denial of his M otion to Vacate or Reduce Sentence pursuant to 28 U.S.C.
§ 2255. Because his motion is untimely, we DENY the COA and DISM ISS his
appeal.
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
I. Background
On April 22, 2002, Velasquez-M eza pleaded guilty to possession of
methamphetamine with intent to distribute and was sentenced to 120 months in
prison followed by 60 months of supervised release. He appealed the conviction
to this court, and we affirmed on October 3, 2003. He did not file a petition for
certiorari. On M ay 5, 2005, Velasquez-M eza filed a § 2255 motion in the district
court, but the district court denied the motion because it w as time barred.
II. Analysis
A circuit court may issue a CO A “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). If a district court rejects a claim on procedural grounds and does
not reach the merits, the appellant seeking a COA must demonstrate “that jurists
of reason would find it debatable w hether the district court was correct in its
procedural ruling.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000). In our
analysis, we construe V elasquez-M eza’s pleadings liberally since he appears pro
se. See Cum mings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998).
Here, there can be no debate because Velasquez-M eza’s petition was
untimely. As the district court explained, for purposes of a § 2255 motion, if a
prisoner does not file a petition for certiorari with the United States Supreme
Court after losing a direct appeal, the one-year limitation begins to run when the
time for filing a petition for certiorari ends. United States v. Burch, 202 F.3d
-2-
1274, 1279 (10th Cir. 2000). The time for filing a petition for certiorari would
have expired on January 2, 2004, ninety days after this court affirmed Velasquez-
M eza’s conviction. For the motion to have been timely, Velasquez-M eza would
have had to file one year after that. Since he did not file until M ay 5, 2005, the
§ 2255 motion is time barred. 1
III. Conclusion
For the foregoing reasons, we D ENY Velasquez-M eza’s application for a
COA and DISM ISS this appeal. His motion to proceed in forma pauperis is
G RA N TED .
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
1
Velasquez-M eza filed a motion for reconsideration in the district court on
the ground that his attorney did not inform him that he had the option of seeking
certiorari and that he w ould have done so had he known that was an option. In
disposing of that motion, the district court assumed, without deciding, that the
statute of limitations would have been tolled in this case, but went on to conclude
that the motion was nevertheless meritless. On appeal, Velasquez-M eza does not
reassert his claim that the statute of limitations should be tolled. However, were
we to reach the merits of his appeal, we could not say that the district court’s
ruling on the merits was debatable in light of our earlier opinion in this case. See
United States v. Velasquez-M eza, 76 F.App’x 926 (10th Cir. 2003).
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