UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EDWARD L. PYEATT,

Defendant - Appellant.No. 02-2241

D.C. No. CIV-00-1580-JC/DJS

and CR-96-228-JC

(D. New Mexico)

ORDER AND JUDGMENT(*)

Before SEYMOUR, HENRY, andBRISCOE, Circuit Judges.

Edward L. Pyeatt brings this 28 U.S.C. § 2255 pro se appealchallengingthe district court's dismissal of his motion to vacate sentence. Mr. Pyeatt allegeshe was denied effective assistance of counsel at sentencing because his attorneywas not licensed to practice law in the state in which he was sentenced. Thedistrict court, approving and adopting the findings and recommendation of amagistrate judge, dismissed Mr. Pyeatt's action with prejudice, finding it wasuntimely under § 2255. Mr. Pyeatt appeals. In reviewing the district court'sdenial of Mr. Pyeatt's § 2255 motion to vacate, we examine the court's factualfindings for clear error, and its legal conclusions de novo. United States v.Wiseman, 297 F.3d 975, 978 (10th Cir. 2002). We deny Mr. Pyeatt's applicationfor a certificate of appealability (COA), and dismiss his appeal.

In order to obtain a COA, Mr. Pyeatt must establish that "jurists of reasonwould find it debatable whether the petition states a valid claim of the denial of aconstitutional right and that jurists of reason would find it debatable whether thedistrict 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 iscorrect to invoke it to dispose of the case, a reasonable jurist couldnot conclude either that the district court erred in dismissing thepetition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal [is] warranted.

Id. Pursuant to Slack, Mr. Pyeatt's appeal fails.

Mr. Pyeatt was sentenced on December 16, 1996, for various drug and gunpossession offenses. Judgment imposing the sentence was entered on January 10,1997. Mr. Pyeatt did not file any direct appeals challenging his sentence or theunderlying conviction. However, on November 6, 2000, he filed a motion tovacate his sentence pursuant to § 2255.

Actions initiated under § 2255 are subject to a one-year period oflimitation. As relevant here, "[t]he limitation period shall run from . . . the dateon which the judgment of conviction becomes final." 28 U.S.C. § 2255. InUnited States v. Burch, 202 F.3d 1274 (10th Cir. 2000), we examined when ajudgment of conviction becomes final after a petitioner's direct appeal. Wereasoned that a "decision of the court of appeals is subject to further review, andtherefore not 'final' within the meaning of § 2255 until direct review has beencompleted." 202 F.3d at 1277 (quoting Kapral v. United States, 166 F.3d 565,571 (3d Cir. 1999)). We concluded that "a defendant's judgment of convictionwas not final for purposes of the one-year limitation period in § 2255 until thetime during which she could have filed a petition for writ of certiorari hadexpired." Id. at 1278.

Here, Mr. Pyeatt did not seek direct appeal of his sentence. Following ouranalysis in Burch, Mr. Pyeatt's judgment of conviction became final when hisclaim could no longer be subject to appellate review, which occurred on January20, 1997, the date his opportunity to file a direct appeal expired. See Fed. R.App. P. 4(b)(1)(A) ("In a criminal case, a defendant's notice of appeal must befiled in the district court within 10 days after the later of: (i) entry of either thejudgment or the order being appealed; or (ii) the filing of the government'snotice of appeal."). See also Kapral, 166 F.3d at 577 ("If a defendantdoes notpursue a timely direct appeal to the court of appeals, his or her conviction andsentence become final, and the statute of limitation begins to run, on the date onwhich the time for filing such an appeal expired."). Pursuant to the one-yearlimitation period of § 2255, it is clear the district court correctly determined Mr.Pyeatt's claim was untimely. Mr. Pyeatt filed his § 2255 petition on November6, 2000, nearly four years after his conviction and sentence became final, andwell outside the one-year window provided by the statute.(1)

Finally, based on our close review of the Mr. Pyeatt's brief and the entirerecord on appeal, we agree with the district court that Mr. Pyeatt failed to raiseany allegations warranting the application of equitable tolling in this case. SeeGibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (equitable tolling ofstatute permitted in only rare and exceptional circumstances); United States v.Willis, 202 F.3d 1279, 1281 n.3 (10th Cir. 2000) (case must present extraordinarycircumstances to warrant equitable tolling of statute of limitations).

Because reasonable jurists could not conclude the district court erred indismissing Mr. Pyeatt's action as untimely, we DENY Mr. Pyeatt's applicationfor a COA and DISMISS this appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.After examining appellant's brief and theappellate record, this panel hasdetermined unanimously that oral argument would not materially assist thedetermination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.34.1(G). The case is therefore submitted without oral argument. This order andjudgment is not binding precedent, except under the doctrines of law of the case,res judicata, or collateral estoppel. The court generally disfavors the citation oforders and judgments; nevertheless, an order and judgment may be cited underthe terms and conditions of 10th Cir. R. 36.3.

1.We note the magistrate judge calculatedMr. Pyeatt's action time barred onApril 10, 1998 (one year after entry of his sentence, plus ninety days in which hecould have filed a certiorari petition). See Sup. Ct. R. 13 (petition for writ ofcertiorari must be filed within ninety days after entry of judgment). Because Mr.Pyeatt did not directly appeal his sentence, however, the proper calculation of thefinal judgment date is based on the date on which time for filing a direct appealexpired.