UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. CHARLES EDWIN MATHISEN, Defendant - Appellan t

. No. 19-8038 (D.C. Nos. 2:19-CV-00001-NDF 2:17-CR-00178-NDF-1) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HOLMES , MURPHY , and CARSON , Circuit Judges.

________________ _________________ Defendant Charles Edwin Mathisen, a fede ral prisoner proceeding pro se, moved for postconviction relief under 28 U.S.C. § 2255 . But before the dist rict court could rule on his original motion, Defe ndant filed an ame nded § 2255 mo tion asserting additional claims. Against Defendant’s wishes, the di strict court determined that the amended motion was untimely and struck it from the record . And after doing so, the district court also dismissed Defendant’s original § 2 255 motion—the only remaining one—based on a provision in Defendant’s plea agreem ent that generally forbade him from collaterally attacking his convic tion and sentence.

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 28, 2020 Christopher M. Wolpert Clerk of Court2 Although Defendant takes no issue with the district court’s ruling on his original § 2255 motion, he now requests a certificate of appealability (COA) so that he may formally challenge the district court’s decisi on to strike his amended § 2255 motion as time barred. Defendant does not say outright why he limits his request for a COA to the amended motion alone. With that said, he pr esumably believes that the other arguments

he raised in his amended motion can somehow get around his plea agreement. So getting those arguments in front of the district court is paramount if Defend ant hopes to have any chance of prevailing under § 2255. Whatever his reason, when a district court disposes of a § 2255 motion on procedural grounds, we may gr ant a COA only when “the pris oner shows . . . that jurists

of reason would find it debatable whether the di strict court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 4 84 (2000). And to put the matter simply, the

timeliness of Defendant’s amen ded § 2255 motion is not subj ect to a good-faith debate. First consider the limitations period that § 2255 imposes on fede ral prisoners. For our purposes today, that statute requires a prisoner to bring a motion for postconviction relief within one year of “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). The date a conviction becomes final, though, changes depending on whether the prisoner files a direct criminal appeal. When a prisoner does file a direct criminal appeal, his or her “criminal convi ction becomes final when the Supreme Court affirms it on direct review, denies certiorari, or (in the absence of a certiorari petition) the time for filing a certiorari petition expires.” United States v. Prow s, 448 F.3d 1223, 1227 (10th Cir. 2006). But when a prisoner does not file a direct criminal appeal, his or her3 “criminal conviction becomes final upon the e xpiration of the time in which to take a direct criminal appeal.” Id. at 1227–28.

Defendant never filed a direct criminal appeal. For purposes of § 2255, that means

his criminal conviction became final when his time for filing a direct appeal expired— fourteen days after the district court entered it s judgment of conviction. See Fed. R. App. P. 4(b)(1)(A)(i) (“In a criminal case, a defenda nt’s notice of appeal must be filed in the district court within 14 days after the later of . . . the entry of eith er the judgment or the order being appealed . . . .”). Given that th e district court entered Defendant’s judgment of conviction on December 20, 2017, Defendan t’s conviction therefore became “final” on January 3, 2018. And as a re sult, he had through January 4, 2019 to file any motions under § 2255. See United States v. Hurs t, 322 F.3d 1256, 1261–62 (10th Cir. 2003) (observing that the limitations period under § 2255(f) begi ns on the day after the judgment becomes final and ends exac tly one year later on the same day). Defendant filed his original § 2255 motio n two days before the statutory deadline on January 2, 2019. So as the di strict court correctly recognized, that motion was timely.

But Defendant did not file his amended § 2255 motion un til March 25, 2019, which was well after the January 4, 2019 deadline. 1 The district court thus correctly concluded that

Defendant’s amended motion was time barred.

1 To be sure, Defendant asked for pe rmission to file his amended motion— permission the district court refused to gi ve—several weeks befo re he filed that motion. But even if we were to instead use the da te he asked for permission— January 28, 2019—the filing dead line would still have passed.4 Defendant offers two retorts. First, he directs us to the Supreme Court’s decision in Clay v. United States, 537 U. S. 522 (2003). In that case, the Supreme Court observed that “[f]inality attaches” un der § 2255 “when the time for filing a certiorari petition expires.” Id. at 527. Defendant takes that holding to mean that his conviction became final ninety days—the typical time to petition for certiorari— after his fourteen-day period for filing a direct criminal appeal had expired. See Sup. Ct. R. 13.1 (requiring a party to petition for certiorari “w ithin 90 days after entry of th e judgment”). Taking those combined 104 days in tandem, Defendant’s own math lead s him to believe that his judgment of conviction became final on Apr il 2, 2018. That would mean, Defendant continues, that he had until April 2, 2019, to file his amended § 22 55 motion. And since March 25, 2019—the day Defendant filed that motion—falls within that period, Defendant argues that his amended motion was timely. Defendant misconstrues Clay. The ruling in that case app lies only when a

defendant first “takes an unsu ccessful direct appeal from a judgment of conviction.” Clay, 537 U.S. at 524; see also id. at 525 (“[A] judgment of conviction becomes final when the time expires for f iling a petition for certiorari contesting the appellate court’s affirmation of the conviction .” (emphasis added)). By contrast, and as we alluded to above, when a defendan t does not file a direct appeal, the time to petition for certiorari simply does not factor into the equation. See Prows, 448 F.3d at 1227–28 (“If the defendant does not file an appeal, the cr iminal conviction beco mes final upon the expiration of the time in which to take a direct criminal appeal.”). As a result, Clay does5 not help Defendant in a ny way given that he never filed a direct appeal and thus could not petition for certiorari. 2 Second, Defendant argues that if he misint erpreted or misapplied the law, then the rule of lenity—a judicial doc trine that “requires ambiguous criminal laws to be interpreted in favor of the defendants subj ected to them,” United States v. Santos, 553 U.S. 507, 514 (2008)—demands th at we interpret the filing de adline in his favor. But as that definition of the rule of lenity make s clear, the criminal law at issue must be ambiguous in some way before we invoke th at doctrine. We canno t apply the rule of lenity simply because a defenda nt subjectively misinterprets or misapplies the law. So even assuming without deciding that we could apply th e rule of lenity to § 2255’s limitations period if that statute was somehow ambiguous, cf. Lay v. United States, 623 F. App’x 790, 794 n.4 (6th Ci r. 2015) (unpublished) (“find[ing] no error” in the district court’s decision to apply the rule of lenity to § 2255’s limitations period in an unusual filing scenario), the simple truth is that § 2255’s limitations period is unambiguous for our purposes today. Again, binding circuit precedent makes as much clear. See Prows,

448 F.3d at 1227–28. For all these reasons, Defendant had throug h January 4, 2019, to file any motions for postconviction relief under § 2255. Be cause Defendant did not file his amended § 2255 motion until several months after that date, the district court correctly struck that

2 We also note that when Defendant re quested permission on January 28, 2019, to file an amended § 2255 mo tion, he argued that he ha d until March 20, 2019, to do so. Only after he failed to meet that deadline did he offer his new argument that the limitations period ended on April 2, 2019.6 motion from the record. We therefore DE NY Defendant’s request for a COA and

DISMISS this matter. We likewise DENY Defendant’s motion for leave to proceed in forma pauperis

. 3

3 Two final points. First, Defendant claims that he “was dili gent in his efforts to abide by the deadlines and ru les” and that any errors on hi s part were “excusable.” From what we can make of that statemen t, we believe Defenda nt is asking us to equitably toll § 2255’s limitations period on his behalf. See United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir. 2008) (“ Equitable tolling of the limitations period is available ‘when an inmate diligen tly pursues his claims and demonstrates that the failure to timely file was caused by extraordin ary circumstances beyond his control.’” (quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000))); id. at 1223–27 (observing that cour ts can equitably toll § 2255’ s limitations period). But Defendant does not say how he was diligent, nor does he say why his errors were excusable and beyond his cont rol. We therefore conclude that Defendant has waived any argument he could have made about equitable tolling. See Christian Heritage Acad. v. Okla. Secondary Sch. Activiti es Ass’n, 483 F.3d 10 25, 1031 (10th Cir. 2007) (“Where an appellant lists an i ssue, but does not s upport the issue with argument, the issue is waiv ed on appeal.”).7 Entered for the Court

Joel M. Carson III Circuit Judge

Second, Defendant does not argue that the date of his am ended § 2255 motion should relate back to the da te of his original § 2255 moti on. See Fed. R. Civ. P. 15(c)(1)(B) (“An amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence se t out—or attempted to be set out—in the original pleading . . . .”); United States v. Roe, 913 F.3d 1285, 1296 (10th Cir. 2019) (observing that an amended § 2255 motion can relate back to the date of the original § 2255 motion by Federal Rule of Civil Procedure 15(c)(1)(B) in “constrained” circumstances). As a resu lt, we again conclude that Defendant has waived any argument he could have made in that regard. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“Despite th e liberal construction afforded to pro se pleadings, the court will not construct argumen ts or theories for the plaintiff in the absence of any discussion of those issues.”). And even if Defendant had raised the argument, his amended § 2255 motion would not relate back to the date of his original motion because his amended claims greatly differ from his original claim. United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 200 0) (explaining that an untimely amendment to a § 2255 motion may “relate back to the date of the original motion if and only if the original motion was timely filed and the proposed amendment does not seek to add a ne w claim or to insert a new theory into the case” (alterations omitted a nd emphasis added)).