United States v. Cano , 353 F. App'x 174 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 1, 2009
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 09-4159
(D. Ct. Nos. 2:09-CV-00658-TC and
DANIEL CANO, 2:00-CR-00326-TC)
(D. Utah)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
Daniel Cano, a federal prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal from the dismissal of his habeas petition brought
pursuant to 28 U.S.C. § 2255. The district court dismissed his petition as untimely. We
take jurisdiction under 28 U.S.C. § 1291, DENY Mr. Cano’s request for a COA, and
DISMISS this appeal.
I. ANALYSIS
On November 1, 2001, Mr. Cano pleaded guilty to one count of threatening to
murder a federal law enforcement officer; one count of mailing threatening
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
communication, aiding and abetting; and one count of mailing threatening
communication. He was sentenced to 115 months to run consecutive with all sentences
imposed in state or federal court and 36 months of supervised release. The court entered
judgment on August 27, 2002. Mr. Cano did not file an appeal.
On July 28, 2009, Mr. Cano filed his § 2255 petition. The district court denied Mr.
Cano’s petition as untimely, and he now seeks a COA. Because the district court denied
Mr. Cano’s petition on procedural grounds, he must demonstrate “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).
Under 28 U.S.C. § 2255(f)(1), Mr. Cano had one year from “the date on which the
judgment of conviction bec[ame] final” to file his petition. Here, judgment was entered
against him on August 27, 2002. Because Mr. Cano did not appeal, his judgment of
conviction became final ten days later on September 11, 2002, when his time for appeal
expired. Fed. R. App. P. 4(b); Fed. R. App. P. 24(a)(2) (excluding weekends and
holidays from time computation). Therefore, Mr. Cano had until September 11, 2003 to
file his § 2255 petition. Because he did not file the petition until July 28, 2009, nearly six
years late, the district court properly dismissed it as time-barred.
II. CONCLUSION
Reasonable jurists could not debate whether the district court was correct to
dismiss Mr. Cano’s habeas petition as untimely. Accordingly, we DENY Mr. Cano’s
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request for a COA and DISMISS this appeal. We GRANT his request to proceed in
forma pauperis on appeal.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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