F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 05-3471
v. (D.C. No. 02-CR-10079-M LB)
(D . Kan.)
BUSTER J. DANIELS, SR.,
Defendant - Appellant.
ORDER
DENYING CERTIFICATE O F APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Defendant-Appellant Buster J. Daniels, Sr., a federal inmate appearing pro
se, appeals from the district court’s dismissal of his motion seeking to file a 28
U.S.C. § 2255 motion out of time. The district court, relying on United States v.
Verners, 15 Fed. Appx. 657 (10th Cir. 2001) (unpublished), dismissed the motion
for lack of jurisdiction. I R. Doc. 44. In Verners, we concluded that a similar
motion was not ripe until an actual § 2255 motion was filed and the limitations
period actually raised. 15 Fed. Appx. at 659-60. W e did not require a certificate
of appealability because a motion seeking to file a § 2255 motion out of time is
not a § 2255 motion. Verners, 15 Fed. Appx. at 658 n.1.
On appeal, M r. Daniels argues the merits of the claims he would like to
bring. Though Verners is not precedential, we think its reasoning is sound and
conclude that the district court correctly dismissed M r. Daniels’ motion for lack
of jurisdiction. Verners stated that “the question of equitable tolling is ripe for
adjudication only when a § 2255 motion has actually been filed and the statute of
limitations has been raised by the respondent or the court sua sponte.” 15 Fed.
Appx. at 660 (emphasis in original). Of course, if the court acts on its own in
raising a limitations defense, it “must accord the parties fair notice and an
opportunity to present their positions.” Day v. M cDonough, 126 S. Ct. 1675,
1684 (2006).
A FFIR ME D.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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