UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID JAY HESS,

Defendant - Appellant.No. 02-4153D.C. No. 2:01-CV-704-S and2:97-CR-226-W(D. Utah)ORDER AND JUDGMENT(*)

Before KELLY, McKAY, and MURPHY, Circuit Judges.

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

Petitioner, David Jay Hess, seeks a certificate of appealability ("COA") sohe can appeal the district court's denial of the motion to vacate, set aside, orcorrect sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.§2253(c)(1)(B) (providing that a petitioner may not appeal the denial of a § 2255motion unless the petitioner first obtains a COA). Hess pleaded guilty to onecount of mailing threatening communications in violation of 18 U.S.C. § 876. On April 29, 2000, an amended judgment and conviction was issued by thedistrict court. Hess did not did not seek to withdraw his guilty plea or otherwisepursue a direct appeal. The instant § 2255 motion was filed on September 11,2001. In the motion, Hess asserted a claim that his counsel providedconstitutionally ineffective assistance thereby rendering his guilty pleaunknowing and involuntary.(1)

Respondent moved to dismiss Hess' § 2255 motion as untimely. Thedistrict court granted the motion, concluding that the motion was filed outside theone-year limitation period set forth in 28 U.S.C. § 2255. The court alsoconcluded that Hess had failed to diligently pursue his claims and failed todemonstrate that his failure to file a timely § 2255 motion was caused byextraordinary circumstances beyond his control. See Marsh v. Soares, 223 F.3d1217, 1220 (10th Cir. 2000).

In his appellate brief, Hess argues that the factual predicate of the claimshe presented in his § 2255 motion were not "discovered through the exercise ofdue diligence," until April 2001, when he retained an attorney who advised himof the immigration consequences of his guilty plea. 28 U.S.C. § 2255(4). Thedistrict court noted, however, that Hess does not dispute that on April 7, 2000 hewas served by the Immigration and Naturalization Service with a Notice toAppear. That notice informed Hess that he was removable from the United Statesbecause of his conviction. Hess' additional argument that he did not waive theright to challenge his guilty plea in a § 2255 motion because the ineffectivenessof his counsel rendered his plea unknowing and involuntary is irrelevant to theequitable tolling issue. To the extent Hess' brief could be read to contain anassertion that this court must always address ineffective assistance of counselclaims, even when those claims are raised in an untimely § 2255 motion, thatassertion is incorrect and constitutes a misunderstanding of our holding in UnitedStates v. Cockerham, 237 F.3d 1179, 1187-91 (10th Cir. 2001).

To be entitled to a COA, Hess must show "that jurists of reason would findit debatable whether the district court was correct in its procedural ruling." Slackv. McDaniel, 529 U.S. 474 , 484-85 (2000) (holding that when a district courtdismisses a habeas petition on procedural grounds, a petitioner is entitled to aCOA only if he shows both that reasonable jurists would find it debatablewhether he had stated a valid constitutional claim and debatable whether thedistrict court's procedural ruling was correct). Our review of the record clearlydemonstrates that the district court's dismissal of Hess' § 2255 motion asuntimely is not deserving of further proceedings or subject to a differentresolution on appeal. Accordingly, we deny Hess' request for a COA anddismiss this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1.Hess' motion sought a writ of habeascorpus pursuant to both 28 U.S.C. 2241 and § 2255. The district court dismissed the claims brought pursuant to 28 U.S.C. § 2241 for lack of jurisdiction and Hess does not challenge that ruling.