FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 17, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-6259
v. (Nos. 5:07-CV-00795-L and
CR-04-189-1-L)
BOBBY FITZGERALD PRINCE, SR., (W.D. Okla.)
Defendant-Appellant.
ORDER *
Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.
Pro se Defendant Bobby Fitzgerald Prince, Sr., seeks a certificate of
appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2255
motion as untimely. In early 2005, Defendant pled guilty to knowingly
transporting two individuals under the age of sixteen in interstate commerce with
the intent that they engage in prostitution, in violation of 18 U.S.C. § 2423(a).
He was sentenced to 150 months’ imprisonment in June 2005.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
As part of his plea, Defendant waived his right to appeal. However, on
September 19, 2005, 108 days after the judgment and sentence were entered on
the court docket, Defendant filed a motion requesting the district court to grant
him leave to file a notice of appeal under 18 U.S.C. § 3742 out of time. The
district court refused to grant the requested relief, finding Defendant had not met
his burden of providing a sufficient reason for failing to comply with the filing
requirements. 1 We agreed with the district court’s dismissal of the motion,
United States v. Prince, 193 F. App’x 798, 800 (10th Cir. 2006), and the Supreme
Court denied certiorari on January 8, 2007, Prince v. United States, 127 S. Ct.
1013 (2007).
Defendant now attempts to contest his sentence through the instant § 2255
motion, filed on July 18, 2007. The district court denied Defendant’s § 2255
motion as untimely because he filed it well over one year after his conviction and
sentence became final. See 28 U.S.C. § 2255 (2006) (providing one-year statute
of limitation for § 2255 motions, running from the date on which judgment
became final). Defendant argues the judgment against him became final only
after the Supreme Court denied certiorari of his request for leave to file a notice
of appeal out of time. Therefore, he argues his current § 2255 motion is timely
because he filed it within one year of the Supreme Court’s denial.
1
See Fed. R. App. P. 4(b)(1)(A)(i) (explaining notice of appeal must be
filed within ten days after entry of judgment).
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Defendant misunderstands the nature of the prior proceeding. That action
involved Defendant’s request to file a notice of appeal out of time. It was not a
direct criminal appeal of Defendant’s sentence and conviction. Defendant failed
to file an appeal of his conviction and sentence within ten days of the June 3,
2005 court docket entry. Because he was never granted leave to appeal out of
time by any court, his sentence and conviction became final ten days after entry
on the court docket, or June 13, 2005. The statue of limitation ran from the June
13, 2005 date, not the January 8, 2007 denial by the Supreme Court of
Defendant’s petition for certiorari to review the denial of his motion for leave to
file a notice of appeal out of time.
Defendant also argues the district court should have construed his original
motion for leave to file out of time as a § 2255 motion because that motion was
filed within the one-year statute of limitation. We do not address Defendant’s
argument on this point because his earlier motion is not before us. We consider
only whether Defendant is entitled to a certificate of appealability to appeal the
district court’s denial of the instant § 2255 motion. To make this determination,
we consider whether Defendant has made a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). To meet this burden,
Petitioner must demonstrate “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
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proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted).
We conclude Defendant has not met this burden and thus DENY his request
for a certificate of appealability and DISMISS the appeal. We GRANT
Defendant’s petition to proceed in forma pauperis.
Entered for the Court
Monroe G. McKay
Circuit Judge
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