Opinion
Case No. 97-10151-JTM.
March 16, 2001.
ORDER
This matter comes before the court on defendant's motion for reconsideration of the court's February 6, 2001 order denying defendant's habeas corpus motion pursuant to 28 U.S.C. § 2255 and for the court to issue a certificate of appealability thereon.
The defendant first argues ineffective assistance of counsel in that counsel failed to notify defendant of his right of direct appeal under § 2255. Next, defendant argues that he was deprived of the right to address matters properly before the court in violation of the Sixth Amendment and his right of due process. The court denied defendant's § 2255 petition because he did not file it within the statutory one-year time limitation. The Tenth Circuit addressed the application of the one-year limitation on the filing of § 2255 motions in United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997). In Simmonds, the Tenth Circuit held that "the one-year limitations period reflected in the amended 28 U.S.C. § 2255 is also a reasonable time for prisoners to bring § 2255 motions whose convictions became final before the Antiterrorism and Effective Death Penalty Act took effect." Id. at 746. In this case, defendant's petition was properly and reasonably denied as untimely. The court thus denies reconsideration.
Pursuant to 28 U.S.C. § 2253(c) and Rule 22(b) of the Federal Rules of Appellate Procedure, no movant may appeal a district court's decision denying a 28 U.S.C. § 2255 motion without a certificate of appealability issued by a district judge or circuit judge. The certificate of appealability may issue only if the defendant has made a substantial showing of the denial of a constitutional right. In Lennox, the Tenth Circuit held that the standard established for the issuance of a certificate of appealability is the same as that governing the issuance of a certificate of probable cause as set forth in Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383 (1983), i.e., the defendant must make "a substantial showing of the denial of a federal right." Lennox v. Evans, 87 F.3d 431, 433 (10th Cir. 1996), overruled on other grounds by United States v. Kunzman, 125 F.3d 1363 (10th Cir. 1997). For the same reasons discussed above, the court finds that the defendant has not made "a substantial showing of the denial of a federal right." Id.
IT IS THEREFORE ORDERED this ___ day of March, 2001, that defendant's motion for reconsideration (dkt. no. 90) is denied and the defendant is denied a certificate of appealability.