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PUBLISH
UNITED STATES COURT OF APPEALS
(D.C. No. CR-97-47(2)-P)
ORDER
Daniel Robert Martin, pro se.
In order for this court to grant a certificate of appealability, Petitioner must
make a "substantial showing of the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). To do so, 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 proceed further." Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
Our review of Appellant's Application raised the initial concern that the
district court failed to notify Appellant that his Application for Nunc Pro Tunc
Order to Modify the Judgment was going to be construed as a § 2255 motion for
habeas corpus.
[A] district court may not recharacterize a pro se litigant's motion as
a request for relief under § 2255 unless the court first warns the
pro se litigant about the consequences of the recharacterization,
thereby giving the litigant an opportunity to contest the
recharacterization, or to withdraw or amend the motion.
Castro v. United States, __ U.S. __, 124 S. Ct. 786, 792 (2003). This has been
the law in our circuit for several years. See United States v. Kelly, 235 F.3d
1238, 1242 (10th Cir. 2000). The usual remedy for such a failure is to "vacate
the court's order denying the motion and remand the case." Id. This remand
would allow the pro se litigant the opportunity to make "all . . . collateral §
2255
arguments in a single § 2255 motion" alleviating the adverse consequence of
having a subsequent § 2255 motion being barred as successive. Id. at 1241,
1242.
In Kelly, we remanded because, but for the district court's error, the
litigant would have had several months remaining in which to file a timely §
2255 motion before the limitation period expired. See id. at 1242. However, in
our case, the deadline for filing a § 2255 motion had expired when Appellant
filed his Application. Notification of the recharacterization would not change the
fact that the limitation period for filing a § 2255 motion had long since passed.
Since any § 2255 motion filed by Appellant in the instant case would be
time barred, the district court's failure to notify Appellant of the
recharacterization was harmless.
[Appellant's] § 2255 motion is governed by the Antiterrorism and
Effective Death Penalty Act (AEDPA), which establishes a one-year
limitations period for federal prisoners seeking habeas relief. If a
prisoner does not file a petition for writ of certiorari with the United
States Supreme Court after his direct appeal, the one-year limitation
period begins to run when the time for filing a certiorari petition
expires. A petition for a writ of certiorari must be filed within
ninety days after denial of a timely petition for rehearing.
United States v. Hurst, 322 F.3d 1256, 1259 (10th Cir. 2003) (internal citations,
quotations, and footnotes omitted). We affirmed Appellant's conviction on direct
appeal on April 5, 2000. The record reflects that Appellant did not file a petition
for a writ of certiorari with the United States Supreme Court. Therefore, the one-year limitation
period began to run ninety days after we affirmed Appellant's
conviction. Appellant's current motion was filed on June 2, 2003, just short of
two years past the expiration of the limitation period.
We have carefully reviewed Mr. Martin's brief, the district court's
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
or Appellant's brief raises an issue which meets our standards for the grant of a
certificate of appealability.
We DENY Petitioner's request for a certificate of appealability and
DISMISS the appeal. Appellant's Petition for Writ of Mandamus is
DENIED.
Entered for the Court
Monroe G. McKay
Circuit Judge
*.After examining the Appellant's brief 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); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
v.
DANIEL ROBERT MARTIN,
Defendant-Appellant.
Submitted on the briefs:(*)
Before TACHA, Chief Circuit Judge, McKAY and
McCONNELL, Circuit
Judges.
This is a pro se 28 U.S.C. § 2255 appeal. Appellant Martin was
convicted
after a jury trial of violations of the Resource Conservation and Recovery Act, 42
U.S.C. §§ 6901-6992, and of conspiracy to manufacture and distribute
methamphetamine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. He was
sentenced to 240 months of imprisonment. His conviction was affirmed by a
panel of this court in United States v. Martin, No. 98-7097 (10th Cir. April 5,
2000). On June 2, 2003, Appellant filed an "Application for Nunc Pro Tunc
Order to Modify the Judgment" with the district court. In a minute order dated
June 10, 2003, the district court construed this motion as a request for relief
pursuant to 28 U.S.C. § 2255 and denied the motion as time barred. Appellant
filed a notice of appeal on June 27, 2003. Appellant also filed a Petition for Writ
of Mandamus addressed to the Tenth Circuit, but he mailed the mandamus to the
district court. We received the forwarded mandamus on July 10, 2003. Since the
district court declined to grant a certificate of appealability, we will first need to
address this issue.
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