* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 26 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. JOHNATHAN URIAH GIBSON, Defendant - Appellant. No. 01-3104 (D.C. No. 01-CV-3014-JTM)

(D. Kan.)

ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges. **
Mr. Gibson seeks to appeal from the district court’ s denial of his motion to vacate, set aside, or correct his sentence, broughtpursuant to 28 U.S.C. § 2255. Because Mr. Gibson has not made a substantial showi ng that the district court’s procedural ruling was erroneous, we dismiss the app eal.- 2 -

In April 1998, Mr. Gibson pled guilty to one count of conspiracy to commit armed bank robbery, two counts of armed bank robbery, and one count of using and or carrying a firearm during and in relation to a crime of violence. Mr. Gibson unsuccessfully sought to withdraw his plea a nd was sentenced to 181 months’ imprisonment. Mr. Gibson’s direct appeal w as decided on May 12, 1999, United States v. Gibson , 176 F.3d 489 (10th Cir. 1999), and he did not fil e a petition for a writ of certiorari with the Supreme Court of the United States. On January 9, 2001, Mr. Gibson filed this habeas motio n which the district court denied as untimely. Mr. Gibson appeals, arguing th at he received ineffective assistance of counsel both as to his right to petit ion for a writ of certiorari, and as to his § 2255 claim. On April 24, 1996, Congress enacted the Antiterrori sm and Effective Death Penalty Act of 1996 (AEDPA), which requires a § 225 5 movant to obtain a certificate of appealability as a prerequisite to appellate review, 28 U.S.C. § 2253(c)(2), by making a “substantial showing of the denial of a constitutional right.” Where, as here, the district court dismiss es the habeas motion on a procedural ground, the appellant must show that jur ists of reason would both “find it debatable whether the district court was c orrect in its procedural ruling” and “find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Each of- 3 -

these steps is “part of a threshold inquiry” that m ust be satisfied before the appeals court may hear the habeas appeal. Id. at 485. We examine first whether Mr. Gibson has made a subs tantial showing that the district court erred in dismissing his habeas m otion as untimely. The AEDPA imposes a one-year limitation on a prisoner’s rightto apply for habeas relief, running from the date that the defendant’s convicti on becomes final. In cases where a defendant does not file a petition for writof certiorari after the denial of the direct appeal, the one-year limitation period b egins to run when the time for filing a certiorari petition expires. Unites State s v. Burch , 202 F.3d 1274 1276 (10th Cir. 2000). This court issued its order and judgment affirming the judgment on May 12, 1999. Supreme Court Rule 13.3 requires defendants to petition the Court for review on certiorari within 90 days after the denia l of the direct appeal. Because Mr. Gibson did not file a timely petition for a wri t of certiorari, the AEDPA’s one-year statute of limitations began to run on Aug ust 10, 1999, and expired on August 10, 2000. Mr. Gibson filed his § 2255 motio n on January 9, 2001, and the district court properly dismissed it as untimely. Mr. Gibson argues that ineffective assistance of co unsel precluded the timely filing of his petition for a writ of certior ari. To succeed on a claim of ineffective assistance of counsel, a defendant mustshow that his attorney’s- 4 -

representation was deficient and that he was prejud iced by that deficiency. Strickland v. Washington , 466 U.S. 668, 687 (1984). There is no evidence o f a deficient performance by Mr. Gibson’s attorney in n ot filing a petition for a writ of certiorari. Mr. Gibson fails to present any evi dence that he was unaware of his right to petition the Supreme Court. Nor does Mr. Gibson provide evidence of any requests to file a petition that went unanswere d by his attorney. Mr. Gibson also argues that ineffective assistance of counsel precluded timely filing of his § 2255 motion. But Mr. Gibson does not claim that he was unaware of this court’s decision on direct appeal. To the contrary, evidence that Mr. Gibson presented in the form of a letter from h is attorney suggests that Mr. Gibson was working on the § 2255 motion before the August 10, 2000 deadline. Mr. Gibson has no grounds for an ineffective assist ance of counsel claim, since counsel is not mandated for collateral attacks. Co leman v. Thompson , 501 U.S. 722, 752 (1991). As Mr. Gibson has not made a substantial showing th at the district court erred in its procedural ruling, we need not examine whether the underlying issues raise substantial constitutional questions. Slack , 529 U.S. at 484 (encouraging appellate court to resolve procedural questions fir st).- 5 -

We DENY a certificate of appealability and DISMISS the appeal.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge