F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 24, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-1392
v. (D.C. Nos. 06-CV-1523-W YD and 04-
CR-347-W YD)
BRIAN F. DU RST, (D . Colo.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE O F APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Defendant-Appellant Brian F. Durst, a federal inmate appearing pro se,
seeks to appeal from the district court’s dismissal of his motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255, and its subsequent
denial of his motion for reconsideration. Because M r. Durst has failed to
demonstrate that it is reasonably debatable whether the district court’s procedural
ruling dismissing his claim is correct or that the district court was w ithin its
discretion in denying the motion for reconsideration, see Slack v. M cDaniel, 529
U.S. 473, 484 (2000), we deny a COA and dismiss the appeal. 1
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M r. Durst’s challenge to the order dismissing his § 2255 petition and his
challenge to the subsequent order denying reconsideration both require a COA.
In December 2004, M r. Durst pled guilty to possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He was sentenced to
thirty-three months imprisonment followed by three years supervised release.
Final judgment w as entered on M arch 30, 2005. M r. Durst did not appeal. On
August 3, 2006, M r. Durst filed his § 2255 motion.
The district court correctly determined that M r. Durst’s § 2255 motion was
time-barred by the one-year limitation period contained therein. The judgment of
conviction became final on April 13, 2005, ten days after the time for appeal had
run. See Clay v. United States, 537 U.S. 522, 524 (2003); Fed. R. App. P.
4(b)(1)(A)(I) (notice of appeal must be filed within ten days after entry of
judgment); 4(b)(6) (judgment is entered when entered on criminal docket);
26(a)(2) (excluding intermediate Saturdays, Sundays or legal holidays if the
period is less than eleven days). Thus, M r. Durst had until April 13, 2006, to file
his § 2255 motion.
M r. Durst filed his motion on August 3, 2006, or July 26, 2006, assuming
he is entitled to the benefits of the prison mailbox rule. See Houston v. Lack, 487
U.S. 266, 270 (1988). Although the one-year limitation period on § 2255 motions
is not jurisdictional, it is subject to equitable tolling only in extraordinary
circumstances. See United States v. W illis, 202 F.3d 1279, 1281 n.3 (10th Cir.
See United States v. Pedraza, 466 F.3d 932, 933-34 (10th Cir. 2006) (citing
United States v. Lambros, 404 F.3d 1034, 1036-37 (8th Cir. 2005), cert. denied,
545 U.S. 1135 (2005)).
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2000). Because M r. Durst did not argue for equitable tolling in his motion, the
district court determined it was inappropriate to toll the statute.
In his motion for reconsideration, M r. Durst argued that because he learned
on July 19, 2006, that the statute he was convicted under was unconstitutional, the
statute of limitations should have run from that point. This is plainly incorrect.
See M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]gnorance of the
law, even for an incarcerated pro se prisoner, generally does not excuse prompt
filing.”) (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)),
cert. denied, 531 U.S. 1194 (2001).
In his two-page brief filed before this court, M r. Durst similarly fails to
make any argument to justify the late filing of his motion. W e note that the
substance of M r. Durst’s argument–that the statute under which he was convicted
is unconstitutional–relies on two cases, both of which have been vacated by the
Supreme Court, see United States v. Smith, 402 F.3d 1303 (11th Cir. 2005),
vacated, 545 U.S. 1125 (2005); United States v. M axwell, 386 F.3d 1042 (11th
Cir. 2004), vacated, 126 S. Ct. 321 (2005), and neither of which is binding in this
circuit. Accordingly, it is not reasonably debatable that the district court’s
dismissal of the claim was correct. Nor is it reasonably debatable that the district
court was well w ithin its discretion in denying the motion for reconsideration.
See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005).
W e DENY a COA and DISM ISS. M r. Durst’s accompanying motion to be
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released on bail pending his appeal is DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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