*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This case is before the court on Edward Herring’s request for a certificate

of appealability (“COA”). Herring seeks a COA so that he can appeal the district
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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 Herring has not “made a

substantial showing of the denial of a constitutional 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, however, Herring’s judgment of

conviction was entered on the docket on July 8, 1998, and became final on July

22, 1998. Furthermore, Herring never filed a direct appeal. Accordingly,

Herring’s instant § 2255 motion, which was filed February 6, 2001, was filed

more than two years outside of the one-year limitation period set out in § 2255

para. 6. Because Herring did not argue that the limitations 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 noted that even if Herring’s § 2255

motion was not untimely, his sentencing claim would be 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 correct 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 grounds, 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). Herring has utterly failed to carry

his burden. In fact, he does not even address in his 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 contest 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 in the district court order filed

March 21, 2001, and DISMISSES this appeal. Herring’s request to proceed on

appeal in forma pauperis is DENIED.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge