UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSE LINCOLN BLEA,

Plaintiff - Appellant,

No. 99-2142
v.	D. New Mexico
UNITED STATES OF AMERICA,

Defendant - Appellee.	(D.C. No. CIV-98-1239-LH/DJS)

ORDER AND JUDGMENT*

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Jose Lincoln Blea, appearing pro se, seeks a certificate of appealability to appeal the district court's dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his fifteen year sentence for being a felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g), as enhanced by the armed career criminal statute, 18 U.S.C. § 924(e). We deny a certificate of appealability and dismiss the appeal.

Mr. Blea was indicted on March 7, 1991, on one count of possession with intent to distribute cocaine and six firearms counts, including being a felon-in- possession of a firearm. Because Mr. Blea had been convicted in New Mexico state court in 1975 of five counts of heroin trafficking and received concurrent sentences of ten to fifty years for each one, the government gave notice that it would seek an enhanced sentence for Mr. Blea as an armed career criminal under 18 U.S.C. § 924(e). Mr. Blea pled guilty to the felon-in-possession count in exchange for the dismissal of the other six counts. In the Memorandum of Understanding supporting his guilty plea, Mr. Blea and his attorney stipulated that the five prior heroin trafficking convictions made him eligible for an enhanced sentence under § 924(e).

On August 31, 1991, Mr. Blea was sentenced to fifteen years imprisonment followed by two years of supervised release.1 Mr. Blea did not appeal the conviction or sentence. He first challenged his sentence when he filed his pro se § 2255 motion on October 7, 1998, alleging the five prior convictions were improperly used to enhance his sentence and that his attorney was ineffective in failing to investigate his prior criminal history and argue that the previous convictions could not be used to enhance his sentence.

The magistrate judge to whom the matter was referred recommended dismissal of the motion with prejudice on the ground that the motion was untimely or, alternatively, that on the merits Mr. Blea was not entitled to relief. Mr. Blea filed written objections to the magistrate judge's report and recommendation. The district court adopted that report and recommendation and dismissed the action with prejudice.2

The government has filed a motion to dismiss this appeal, arguing that Mr. Blea's § 2255 motion was procedurally barred or, alternatively, meritless. We agree.

The Antiterrorism and Effective Death Penalty Act ("AEDPA") became effective on April 24, 1996. The AEDPA imposed a one-year limitation on § 2255 petitions from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(1). In United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997), we held that "prisoners whose convictions became final on or before April 24, 1996 must file their § 2255 motions before April 24, 1997." Mr. Blea's conviction became final in 1991. The one-year grace period applicable to inmates like Mr. Blea expired on April 24, 1997. Because Mr. Blea did not file his § 2255 motion until October 7, 1998, it is untimely under the AEDPA and Simmonds.3

For the foregoing reasons, we DENY the certificate of appealability and DISMISS the appeal.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge