* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The 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. 

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

### FEB 8 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. EDWARD E. HERRING, JR., Defendant-Appellant. No. 01-1246 (D.C. Nos. 01-N-261, 98-CR-52-N) (District of Colorado)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This case is before the court on Edward Herring’s r equest for a certificate of appealability (“COA”). Herring seeks a COA so that he can appeal the district-2-

court’s denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal may be taken from a final order in a § 2255 proceeding unless the movant first obtains a COA). Because He rring has not “made a substantial showing of the denial of a constitution al right,” this court denies his request for a COA and dismisses this appeal. See id. § 2253(c)(2). Herring pleaded guilty in federal district court to three counts of aiding and abetting in a bank robbery. In his § 2255 motion, Herring contends that the district court erred when it increased his offense level by two points pursuant to United States Sentencing Guideline § 2B3.1(b)(4)(B) . As the district court pointed out in denying Herring’s § 2255 motion, how ever, Herring’s judgment of conviction was entered on the docket on July 8, 199 8, and became final on July 22, 1998. Furthermore, Herring never filed a direc t appeal. Accordingly, Herring’s instant § 2255 motion, which was filed Fe bruary 6, 2001, was filed more than two years outside of the one-year limitat ion period set out in § 2255 para. 6. Because Herring did not argue that the li mitations period should be equitably tolled, the district court denied Herring ’s petition on the ground that it was untimely. In so doing, the district court note d that even if Herring’s § 2255 motion was not untimely, his sentencing claim wouldbe procedurally barred because it was not raised in a direct appeal, see United States v. Frady , 456 U.S. 152, 165 (1982), and was, in any event, meritless.-3-

To be entitled to a COA, Herring must show “that jurists of reason would find it debatable whether the district court was co rrect in its procedural ruling.” See Slack v. McDaniel , 529 U.S. 474, 484-85 (2000) (holding that when a district court dismisses a habeas petition on procedural gro unds, a petitioner is entitled to a COA only if he shows both that reasonable jurists would find it debatable whether he had stated a valid constitutional claim and debatable whether the district court's procedural ruling was correct). H erring has utterly failed to carry his burden. In fact, he does not even address in h is filings in this court the district court’s conclusion that his § 2255 motion is time-barred or the question of equitable tolling. Because Herring does not contes t the district court’s conclusion that his § 2255 motion is time-barred and does not offer any ground upon which the limitations period could be equitably tolled, this court DENIES his request for a COA for substantially those reasons set out i n the district court order filed March 21, 2001, and DISMISSES this appeal. Herring’s request to proceed on appeal in forma pauperisis DENIED

.ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge