United States v. Prado-Diaz , 434 F. App'x 763 ( 2011 )


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  •                                                                                      FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                             Tenth Circuit
    TENTH CIRCUIT                          September 30, 2011
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    No. 11-2037
    v.                                                (D.C. Nos. 1:10-CV-00931-RB-LFG &
    2:04-CR-02502-RB-2)
    JOSE ANTONIO PRADO-DIAZ,                                        (D. N.M.)
    Defendant - Appellant.
    ORDER DENYING LEAVE TO PROCEED
    ON APPEAL IN FORMA PAUPERIS,
    DENYING CERTIFICATE OF APPEALABILITY,
    AND DISMISSING APPEAL
    Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
    Jose Antonio Prado-Diaz, a federal prisoner proceeding pro se,1 wants to appeal
    from the district court’s denial of his 
    28 U.S.C. § 2255
     motion to vacate, set aside or
    correct sentence. The district court denied the motion as untimely. Because that decision
    is not even debatably incorrect, we deny Prado-Diaz’s request for a Certificate of
    Appealability (COA).
    On June 10, 2005, Prado-Diaz pled guilty pursuant to a plea agreement to
    possession with intent to distribute cocaine. He was sentenced to 108 months
    1
    We liberally construe Prado-Diaz’s pro se filings. See Ledbetter v. City of
    Topeka, Kan., 
    318 F.3d 1183
    , 1187 (10th Cir. 2003).
    imprisonment on January 12, 2006. The district court entered judgment on January 19,
    2006, but mistakenly entered the date as January 19, 2005. Prado-Diaz did not
    immediately appeal.2 On February 5, 2008, the court amended the judgment to reflect the
    correct date. It did so pursuant to Rule 36 of the Federal Rules of Criminal Procedure,
    which provides: “After giving any notice it considers appropriate, the court may at any
    time correct a clerical error in a judgment . . . or correct an error in the record arising
    from oversight or omission.” According to Prado-Diaz, the court did not provide him
    notice of the amended judgment. Instead, he first learned of the amendment on July 21,
    2010, when he requested and received a copy of his criminal case docket sheet. On
    August 30, 2010, he attempted to file a direct appeal. We dismissed the appeal as
    untimely on September 2, 2010.
    On September 29, 2010, Prado-Diaz filed a § 2255 motion challenging his guilty
    plea and sentence. The motion was referred to a magistrate judge, see 
    28 U.S.C. § 636
    ,
    who sua sponte issued an order directing Prado-Diaz to show cause why his § 2255
    motion should not be dismissed as untimely as it was filed outside the one-year statute of
    limitations applicable to § 2255 motions. See 
    28 U.S.C. § 2255
    (f). Upon receiving
    Prado-Diaz’s response, the magistrate judge directed the government to brief the
    timeliness issue.
    The magistrate judge concluded Prado-Diaz’s motion was untimely and
    recommended dismissal. He determined Prado-Diaz’s conviction became final on
    2
    There is some indication in the record that Prado-Diaz waived his right to appeal
    in his plea agreement.
    -2-
    February 2, 2006, when the time for filing a direct appeal expired. Therefore, the one-
    year statute of limitations ended on February 2, 2007, over two years before Prado-Diaz
    filed his § 2255 motion. The magistrate judge rejected Prado-Diaz’s argument that the
    statute of limitations did not begin to run until July 21, 2010, when he first learned of the
    amended judgment. The judge determined the amendment to the judgment was to correct
    a clerical error which did not require notice to the parties under Rule 36 and which did
    not affect the date of the judgment’s finality (February 2, 2006). Finally, he concluded
    Prado-Diaz had not established grounds for equitable tolling.
    Over Prado-Diaz’s objections, the district court adopted the magistrate judge’s
    recommendation and denied the § 2255 motion. It subsequently denied Prado-Diaz’s
    requests for a COA and to proceed in forma pauperis (ifp) on appeal.
    A COA is a jurisdictional prerequisite to our review of a petition for a writ of
    habeas corpus. Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003). We will issue a COA
    “only if the applicant has made a substantial showing of the denial of a constitutional
    right.” 
    28 U.S.C. § 2253
    (c)(2). “When[, as here,] the district court denies a habeas
    petition on procedural grounds without reaching the prisoner's underlying constitutional
    claim, a COA should issue when the prisoner shows, at least, that jurists of reason would
    find it debatable whether the petition states a valid claim of the denial of a constitutional
    right and 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). In
    evaluating whether an applicant has satisfied this burden, we undertake “a preliminary,
    though not definitive, consideration of the [legal] framework” applicable to each of his
    -3-
    claims. Miller-El, 
    537 U.S. at 338
    .
    In cogent orders, the magistrate judge and district court thoroughly and correctly
    addressed and resolved the timeliness issue. As no jurist of reason could reasonably
    debate the correctness of the district court’s decision, we DENY the request for a COA
    and DISMISS this matter. We DENY Prado-Diaz’s motion to proceed ifp on appeal.
    Entered by the Court:
    Terrence L. O’Brien
    United States Circuit Judge
    -4-
    

Document Info

Docket Number: 11-2037

Citation Numbers: 434 F. App'x 763

Judges: O'Brien, McKay, Tymkovich

Filed Date: 9/30/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024