United States v. Terrones-Lopez, 10th Cir. (2011)

FILED
United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT
November 23, 2011

Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
No. 11-6200
(D.C. Nos. 5:11-CV-00321-L &
5:07-CR-00014-L-1)
(D. W.D. Oklahoma)
REYES TERRONES-LOPEZ,
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Defendant Reyes Terrones-Lopez, proceeding pro se, filed a motion for

relief under 28 U.S.C. 2255 in the United States District Court for the Western
District of Oklahoma. The court denied the motion. Defendant now seeks a
certificate of appealability (COA) from this court so that he may appeal the
district courts decision. See 28 U.S.C. 2253(c)(1)(B) (requiring COA to appeal
denial of 2255 relief). We deny the application for a COA and dismiss the
appeal because the district courts decision that Defendants motion was untimely
is not debatable or wrong.
I.
BACKGROUND
In January 2007 a federal grand jury indicted Defendant on ten counts

alleging drug offenses. In compliance with an agreement with the government, he
pleaded guilty to three counts charging distribution of cocaine. See 18 U.S.C.
841(a)(1). He also waived his right to appeal or raise a collateral challenge to
his guilty plea or sentence, except that he retained the right to challenge a
sentence above the guidelines range. On October 10, 2007, the district court
entered judgment sentencing Defendant on the three counts to 108 months in
prison and dismissing the remaining counts.
On December 22, 2008, Defendant filed a pro se notice of appeal. He
argued that his sentence should be vacated because the sentencing court failed to
consider all factors set forth in 18 U.S.C. 3553(a) before imposing sentence.
On April 13, 2009, a panel of this court granted the governments motion to
dismiss the appeal as untimely. See United States v. Terrones-Lopez,
No. 08-6274 (10th Cir. Apr. 13, 2009) (unpublished order). On January 13, 2011,
Defendant filed a nearly identical pro se notice of appeal. We dismissed the
appeal on February 17, 2011, this time raising sua sponte the inordinate lateness
of Defendants appeal. See United States v. Terrones-Lopez, No. 11-6011 (10th
Cir. Feb. 17, 2011) (unpublished order).
On March 23, 2011, Defendant, proceeding pro se, filed his 2255 motion
in district court. He raised six claims for relief: (1) trial counsel was ineffective
for failing to file a notice of appeal despite Defendants request for counsel to do
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so, and his waiver of his right to appeal was invalid; (2) trial counsel provided
ineffective assistance by failing to (a) investigate witnesses, (b) submit a
meaningful motion to suppress evidence, (c) keep Defendant apprised of his rights
and available defenses, (d) object to misleading testimony, (e) make Rule 32
objections to the presentence report, (f) submit authorities justifying a downward
departure, and (g) protect Defendants rights to due process and a direct appeal;
(3) the trial court procedurally erred by (a) ignoring his fast-track disparity
argument and (b) imposing sentence without stating reasons; (4) Defendants
indictment was defective because it failed to allege drug quantity and the range of
penalties; (5) Defendants sentence was outside the range of reasonableness; and
(6) Defendant should have received a downward departure because of his status as
a deportable alien. Defendants motion did not explain why it was filed after the
one-year limitations period imposed by 28 U.S.C. 2255(f). The district court
denied Defendants motion as untimely. It also observed that even if Defendant
had timely filed his motion, it would be denied because Defendant had knowingly
and voluntarily waived his right to attack his sentence and his claims were
unsupported by the record.
Defendant filed a timely notice of appeal. Reading liberally Defendants
pro se application for a COA, see Erickson v. Pardus, 551 U.S. 89, 94 (2007),
Defendant now challenges his sentence on the ground that 18 U.S.C. 841 and
846 are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).
-3-
II.
DISCUSSION
A certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right. 28 U.S.C.

2253(c)(2). If the application was denied on procedural grounds, the applicant
must also show that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484
(2000). Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further. Id.
Section 2255 motions are subject to a one-year statute of limitations. See
28 U.S.C. 2255(f). The limitations period begins on the latest of four possible
dates:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making
a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
-4-
28 U.S.C. 2255(f). We generally assume that the limitations period begins to

run at the time the movants conviction became final unless the movant can show
that it should begin at a later time. See United States v. Valencia, 472 F.3d 761,
763 (10th Cir. 2006). If the defendant does not file an appeal, the criminal
conviction becomes final upon the expiration of the time in which to take a direct
criminal appeal. United States v. Prows, 448 F.3d 1223, 122728 (10th Cir.
2006).
The district court entered judgment in Defendants case on October 10,
2007. At that time the Federal Rules of Appellate Procedure gave Defendant 10
days (excluding intermediate Saturdays, Sundays, and legal holidays) to file a
notice of appeal. See Fed. R. App. P. 4(b)(1)(A) (2008); Fed. R. App. P. 26(a)
(2008). Defendants conviction therefore became final on October 24, 2007, and
he had until October 24, 2008, to file a 2255 motion. But Defendant did not file
his motion until March 23, 2011. No reasonable jurist could debate that the
motion was untimely. See Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)
(This court has repeatedly insisted that pro se parties follow the same rules of
procedure that govern other litigants. (internal quotation marks omitted)).
Although the limitations period can be extended by equitable tolling, see
United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008), Defendant has
made no argument in the district court or this court that equitable tolling should
apply. Also, Defendants untimely notices of appeal did not delay the onset of
-5-
the limitations period. See United States v. Smith, 2000 WL 639488, at *1 (10th
Cir. May 18, 2000) (unpublished).
III.
CONCLUSION
We DENY Defendants request for a COA and DISMISS this appeal. We
DENY Defendants request to proceed in forma pauperis.

ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-6-

United States v. Terrones-Lopez, 10th Cir. (2011)

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FILED

United States Court of Appeals

November 23, 2011

UNITED STATES OF AMERICA,

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Defendant Reyes Terrones-Lopez, proceeding pro se, filed a motion for

In January 2007 a federal grand jury indicted Defendant on ten counts

a substantial showing of the denial of a constitutional right. 28 U.S.C.

28 U.S.C. 2255(f). We generally assume that the limitations period begins to

DENY Defendants request to proceed in forma pauperis.

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