United States v. Saunders , 248 F. App'x 967 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 1, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 07-4082
v. (D. Utah)
DAVID A. SAUNDERS, (D.C. No. 2:07-CV-27-PG V and
2:03-CR-942-PGC)
Defendant-Appellant.
OR DER
Before H E N RY, TYM K O VICH , and HO LM ES, Circuit Judges.
David Allen Saunders seeks a certificate of appealability (“COA”) to
appeal the district court’s order denying his “Petition for W rit of H abeas Corpus,
Jus Legitium, Jus Quaesitum [28 U.S.C. § 2241].” Rec. doc. 1, at 1. For the
reasons set forth below, we deny M r. Saunders’ application and dismiss this
matter.
I. BACKGROUND
On M ay 26, 2004, M r. Saunders pleaded guilty to receipt of child
pornography and possession of child pornography, in violation of 18 U.S.C. §
2252A. On November 29, 2004, the district court sentenced M r. Saunders to 60
months’ imprisonment, followed by sixty months’ supervised release. The court
entered the judgment of conviction on December 1, 2004.
M r. Saunders did not file a direct appeal of his conviction or sentence.
How ever, on January 16, 2007, he filed a “Petition for W rit of H abeas Corpus,
Jus Legitium, Jus Quaesitum [28 U.S.C. § 2241],” in which he alleged that the
district court lacked jurisdiction to enter the judgment of conviction. The district
court characterized M r. Saunders’ petition as a 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence and denied the motion as untimely,
reasoning that, under 28 U.S.C. § 2255(1), M r. Saunders had one year to file the
motion after his sentence became final. M r. Saunders’ conviction “became final
ten days after the time for appeal had run, excluding intermediate Saturdays,
Sundays, or legal holidays.” United States v. Guerrero, 488 F.3d 1313, 1316 n.2
(10th Cir. 2007); see also F ED . R. A PP . P. 4(b)(1)(A)(i) (stating that a notice of
appeal must be filed within ten days after the entry of judgment); 4(b)(6) (stating
that a judgment is entered when it is entered on the criminal docket); 26(a)(2)
(excluding intermediate Saturdays, Sundays or legal holidays if the period is less
than eleven days). However, M r. Saunders did not file the motion until more than
tw o years later.
II. DISCUSSION
In order to obtain a COA, M r. Saunders must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). M r. Saunders
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may make this showing by demonstrating 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.” M iller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks omitted). “[A] claim can be debatable even
though every jurist of reason might agree, after the COA has been granted and the
case has received full consideration, that [the] petitioner will not prevail.” Id. at
338.
In determining whether M r. Saunders is entitled to a COA, we must first
consider the district court’s decision to recharacterize M r. Saunders’ motion as
one filed pursuant to 28 U.S.C. § 2255. W e agree with the district court that M r.
Saunders’s “Petition for W rit of Habeas Corpus, Jus Legitium, Jus Quaesitum [28
U.S.C. § 2241],” is properly characterized as a 28 U.S.C. § 2255 motion: M r.
Saunders’ petition challenged the imposition of his conviction and sentence, not
the manner in which his sentence was executed. See Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996) (stating that “[a] petition [filed] under 28 U.S.C. § 2241attacks the execution of a sentence rather than its validity and must be filed in the
district where the prisoner is confined” while “[a] 28 U.S.C. § 2255 petition
attacks the legality of detention, and must be filed in the district that imposed the
sentence”) (internal citations omitted).
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Nevertheless, the Supreme Court has held that “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 [i.e., that subsequent § 2255 motions will be subject to the
restrictions on second or successive § 2255 motions], thereby giving the litigant
an opportunity to contest the recharacterization, or to withdraw or amend the
motion.” Castro v. United States, 540 U.S. 375, 382 (2003); see also United
States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000) (applying the same rule).
Nevertheless, a failure to so notify the pro se litigant may be harmless. See
United States v. M artin, 357 F.3d 1198, 1200 (10th Cir. 2004) (concluding that
“[s]ince 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”).
Here, there is no indication that the district court notified M r. Saunders of
the consequences of recharacterizing his motion. Nevertheless, we conclude that
the failure to notify M r. Saunders was harmless. M r. Saunders’ motion was
untimely and equitable tolling of the limitations period is not warranted.
In his supplemental brief, M r. Saunders argues that the one-year statute of
limitations is inapplicable because his motion was filed pursuant to 28 U. S.C. §
2241 rather than § 2255. In the alternative, he contends that the limitations
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period violates his First Amendment right to petition the government for a redress
of grievances.
Neither argument is persuasive. As noted above, we agree with the district
court that M r. Saunders’ motion is properly characterized as filed under § 2255.
The one-year limitations period established by 28 U.S.C. § 2255(1) is therefore
applicable. As to M r. Saunders’ constitutional argument, we note that although
the First Amendment provides a right of access to the courts, see Lewis v. Casey,
518 U.S. 343 (1996), the mere fact that a claim may only be asserted within a
limited period of time does not violate that right. Cf. Fisher v. Gibson
262 F.3d 1135 (10th Cir. 2001) (holding that, absent proof that it renders the
habeas remedy “inadequate or ineffective,” the one-year limitation does not
violate the Suspension Clause). M oreover, as the district court concluded, M r.
Saunders has not demonstrated that circumstances beyond his control prevented
him from filing a § 2255 motion within the one-year period. See M iller v. M arr,
141 F.3d 976, 978 (10th Cir. 1998).
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III. CONCLUSION
Accordingly, we DEN Y M r. Saunders’ application for a CO A and DISM ISS
this matter.
Entered for the Court,
Elisabeth A. Shumaker
Clerk of Court
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