* After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument. 

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

### APR 14 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CHRISTOPHER SIMMONDS, Defendant-Appellant. No. 96-3287

Appeal from the United States District Court

for the District of Kan. (D.C. No. 96-3386-RDR)

Submitted on the briefs: * Jackie N. Williams, United States Attorney, Distric t of Kansas; Tanya J. Treadway, Assistant United States Attorney, Distric t of Kansas; David S. Kris, Department of Justice, Washington, D.C., for Plaint iff-Appellee. Michael G. Katz, Federal Public Defender; James P. Moran, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Ap pellant.

Before BRORBY, HENRY and MURPHY , Circuit Judges.1 28 U.S.C. § 2254 and 28 U.S.C. § 2255 are both co mmonly referred to as

habeas corpus petitions. See Santana v. United States , 98 F.3d 752, 753 n.1 (3d Cir. 1996). However, as this court has held, the two are different proceedings and should be treated accordingly. United States v. Cook, 997 F.2d 1312, 1316 n.3 (10th Cir. 1997). Therefore, use of the term "habe as corpus" as used in this opinion refers to § 2254 proceedings only.

2For the purposes of this issue only, we have cons olidated for consideration and decision Williams v. Henderson , No. 96-1330 (Order and Judgment, Apr. 14, 1997), which involves a 28 U.S.C . § 2254 habeas corpus proceeding.

-2- BRORBY , Circuit Judge.

Mr. Simmonds, a federal prisoner, appeals the Unite d States District Court for the District of Kansas' denial of his motion fo r post-conviction relief pursuant to 28 U.S.C. § 2255. On appeal, we consider four i ssues: 1) whether this court should rule on a prisoner's application for a certi ficate of appealability pursuant to 28 U.S.C. § 2253(c) before requiring the governmentto file a brief on the appeal's merits; 2) whether 28 U.S.C. § 2254 habeas corpus 1 and 28 U.S.C. § 2255 proceedings are "civil actions" as contemplated by 28 U.S.C. § 1915 of the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996) 2 ; 3) whether the one-year time limitation promulgat ed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No . 104-132, 110 Stat. 1214 (Apr. 24, 1996), for filing motions under 28 U.S.C. § 2255 applies to this motion;-3-

and 4) whether Mr. Simmonds is entitled to a certi ficate of appealability pursuant to 28 U.S.C. § 2253(c).

I. FACTS In 1990, Mr. Simmonds was convicted on two counts o f assaulting a corrections officer with a dangerous weapon, in vio lation of 18 U.S.C. § 111(a)(1), (b), and one count of possessing a pro hibited weapon, in violation of 18 U.S.C. § 1791(a)(2). On direct appeal, Mr. Simm onds challenged his conviction on the ground the district court committ ed plain error in failing to instruct the jury on a diminished capacity defense. This court affirmed Mr. Simmonds' conviction in United States v. Simmonds , 931 F.2d 685, 689 (10th Cir.), cert. denied, 502 U.S. 840 (1991). In 1996, Mr. Simmonds fileda pro se motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, arguing his counsel was constitutionally ineffectiv e for failing to request jury instructions on intent and diminished capacity. Mr . Simmonds also filed an application to proceed in forma pauperis

.

The district court granted the application to proce ed in forma pauperis , but denied Mr. Simmonds' motion to vacate without a hearing, concluding the motion was frivolous and untimely under the one-year time limitation in the Antiterrorism-4-

and Effective Death Penalty Act. 28 U.S.C. § 2255. Mr. Simmonds filed a notice of appeal, a motion to proceed in forma pauperis , and an application for a certificate of appealability. The district court i ssued an order denying the certificate of appealability pursuant to 28 U.S.C. § 2253(c). The government filed a motion requesting this court rule on Mr. Si mmonds' application for a certificate of appealability prior to requiring the government to file a brief on the appeal's merits. This court took the government's motion under advisement and ordered the government to brief the sequencing issu e in its brief addressing the appeal's merits.

II. ISSUES A. Sequencing of Briefs We first address whether the circuit court should rule on the prisoner's application for a certificate of appealability unde r 28 U.S.C. § 2253(c) prior to requiring the government to file a brief addressing the appeal's merits. As amended by the Antiterrorism and Effective Death Pe nalty Act, 28 U.S.C. § 2253(c) provides a prisoner may not appeal a 28 U .S.C. § 2255 motion or final order in a habeas corpus proceeding before a "circu it justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c) (1)(A), (B). This language seems to indicate certificates of appealability sho uld be issued, if at all, only by a3 Mr. Simmonds states the certificate of appealabil ity requirements of 28

U.S.C. § 2253(c) are inapplicable to him citing United States v. Lopez , 100 F.3d 113 (10th Cir. 1996). We can only assume from his reliance on Lopezthat Mr. Simmonds is attempting to argue this court would be giving 28 U.S.C. § 2253 an impermissible retroactive effect by requiring Mr. S immonds to obtain a certificate of appealability. See Lopez , 100 F.3d at 117. However, in Lopez , the prisoner had filed his 28 U.S.C. § 2255 motion prior to the effective date of the 28 U.S.C. § 2253(c) amendments. Id. at 116. Here, Mr. Simmonds filed his 28 U.S.C. § 2255 motion after the amendment's effective date. Consequently, because Mr. Simmonds had notice of 28 U.S.C. § 2253's requireme nts when he filed his motion, and because the requirements of 28 U.S.C. § 2253(c) govern procedural conduct occurring after the amendment's effective d ate, no retroactivity problem exists. See Landgraf v. USI Film Products , 511 U.S. 244, 275 (1994).

-5- circuit justice or judge. 3 Id. The language of this amended statute seems to conflict with Fed. R. App. P. 22(b), which provides the district court judge who entered the judgment "shall either issue a certific ate of appealability or state the reasons why such a certificate should not issue"; u nder Rule 22(b), only after the district court has denied the certificate will the circuit court consider whether the certificate should issue. Id. While the specific language of Fed. R. App. P. 22 (b) seems to deal only with habeas corpus proceedings, and not 28 U.S.C. § 2255 motions, the caption of the rule indicates its appl ication to § 2255 motions. See Fed. R. App. P. 22(b) (rule captioned "Habeas Corpu s and Section 2255 Proceedings"). Consequently, the statute and rule created confusion as to the district court's role in issuing certificates of ap pealability.4In Houchon v. Zavaras , 107 F.3d 1465, ____, 1997 WL 81157, *2-4 (Feb.

27, 1997), this court held 28 U.S.C. § 2253(c) does not foreclose district judges from issuing certificates of appealability in habea s corpus petitions.

-6- In an attempt to resolve the apparent conflict, thi s court issued an emergency order "direct[ing] the district courts to consider the propriety of issuing certificates of appealability in the first instance." Emergency General Order, In re Procedures Regarding the Prison Litigation Re form Act and the Antiterrorist and Effective Death Penalty Act , No. 96-41 (10th Cir. Oct. 1, 1996). 4 Additionally, the order directs if a certificate of appealability is denied by the district court, "petitioner-appellants will be requ ired to brief any request for a certificate of appealability in this court and addr ess the merits of their appeals at the same time. Respondent-appellees shall not file a brief until requested to do so by this court." Id. (citation omitted).

We agree with the government that the circuit courtshould, in most cases, rule on the certificate of appealability prior to r equiring the government's merit brief. This conclusion is supported not only by th e plain language of the Emergency Order, but also by the legislative intentof the Antiterrorism and Effective Death Penalty Act. Congress enacted the certificate of appealability provisions in an attempt to curb repetitive filings and to mitigate the burden on-7-

taxpayers resulting from such abuses. See 141 Cong. Rec. H1400-02 (daily ed. Feb. 7, 1995) (statement of Rep. Stenholm). Requir ing the government to invest time, money, and energy into briefing the merits of an appeal before the circuit court has even ruled on whether it will exercise ju risdiction under 28 U.S.C. § 2253(c), is contrary to the certificate of appeal ability's intended purpose. As a result, given the plain language of the Emergency O rder, coupled with the intent of 28 U.S.C. § 2253(c), we hold the circuit court s hould rule on whether it will issue a certificate of appealability before requiri ng the government's merit brief.

However, as mandated by the permissive language in the emergency order, this holding leaves ajar the door of discretion ves ted in the circuit court; the circuit court may still request the government's me rit brief before ruling on a certificate of appealability, especially in those c ases the court finds particularly difficult or complex such that a merit brief from t he government would significantly aid its decision. Furthermore, as di rected in Fed. R. App. P. 22(b), when the district court denies a certificate of app ealability, it should provide an aid to the circuit court in evaluating a petitioner 's request for a certificate by stating "the reasons why such a certificate should not issue." Nevertheless, barring any unique or difficult cases, the circuit court should rule on a certificate-8-

of appealability before requiring the government's brief addressing the appeal's merits.

B. Interpretation of "civil action" in 28 U.S.C. § 1915. As stated, for purposes of this issue only, we cons olidate for consideration and decision Williams v. Henderson , No. 96-1330 (Order and Judgment, Apr. 14, 1997); consequently, we consider whether in forma pauperis 28 U.S.C. § 2254 habeas corpus (the state prisoner's vehicle for pos t-conviction relief) or 28 U.S.C. § 2255 proceedings (the federal prisoner's version of habeas corpus) are "civil actions" for purposes of 28 U.S.C. § 1915. We conc lude, as at least five other circuits have, they are not. Naddi v. Hill , 106 F.3d 275, 277 (9th Cir. 1997) (habeas corpus proceedings are not "civil actions" for purposes of 28 U.S.C. § 1915); United States v. Cole , 101 F.3d 1076, 1077 (5th Cir. 1996) (28 U.S.C. § 2255 proceedings are not "civil actions" for purp oses of 28 U.S.C. § 1915);
Santana , 98 F.3d at 754-55 (same); Martin v. United States , 96 F.3d 853, 855 (7th Cir. 1996) (neither habeas nor 28 U.S.C. § 2255 pro ceedings are "civil actions" for purposes of 28 U.S.C. § 1915); Reyes v. Keane , 90 F.3d 676, 678 (2d Cir.5 The United States government concedes § 2255 proc eedings are not "civil

actions" for purposes of 28 U.S.C. § 1915.

628 U.S.C. § 1915(a)(2) provides: A prisoner seeking to bring a civil action or appea l a judgment in a civil action or proceeding without prepayment of fe es or security therefor, in addition to filing the affidavit filed under paragraph (1) shall submit a certified copy of the trust fund acc ount statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint o r notice of appeal, obtained from the appropriate official of each pris on at which the prisoner is or was confined. 28 U.S.C. § 1915(b)(1) provides: Notwithstanding subsection (a), if a prisoner bring s a civil action or files an appeal in forma pauperis , the prisoner shall be required to pay the full amount of a filing fee. The court sha ll assess and, when funds exist, collect, as a partial payment of any c ourt fees required by law, an initial partial filing fee of 20 percent of the greater of -- (A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's a ccount for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

-9- 1996) (habeas corpus proceedings are not "civil act ions" for purposes of 28 U.S.C. § 1915). 5

Pursuant to 28 U.S.C. § 1915, as amended by the Pri son Litigation Reform Act, prisoners proceeding in forma pauperis who bring a "civil action" or appeal a judgment in a civil action are required to pay all filing fees 6 . The Prison-10-

Litigation Reform Act does not define "civil action " for purposes of in forma pauperis litigants and fails to expressly exclude habeas an d § 2255 proceedings from its scope. When interpreting a statutory term , a reviewing court must determine whether the language is ambiguous or whether it has a plain meaning; if the statutory language is ambiguous, a court canthen resort to legislative history as an aid to interpretation. United States v. Floyd, 81 F.3d 1517, 1523 (10th Cir.), cert. denied, 117 S. Ct. 144 (1996); United States v. Roberts , 88 F.3d 872, 877 (10th Cir. 1996).

Unlike many terms that are easily definable, "civil action" is a term used in many statutes, and its meaning depends on its conte xt within the applicable legislation. Green v. Nottingham , 90 F.3d 415, 417 (10th Cir. 1996). "'The application of each statute or rule using the words "civil action" must be decided on the basis of its language, its history, and its purpose.'" Id. (quoting Payden v. United States (In re Grand Jury Subpoena Duces Tecu m ), 775 F.2d 499, 503 (2d Cir. 1985)). Therefore, we consider the meaning of the phrase "civil action" only as applied in the Prison Litigation Reform Act's co ntext.

Habeas corpus and 28 U.S.C. § 2255 proceedings are strange and slippery creatures. Certainly, habeas corpus and § 2255 are different proceedings and-11-

should be treated as such in most contexts. The tw o proceedings are governed by different statutes and serve different policies. See Rules Governing Section 2255 Proceedings, Rule 1, and accompanying Advisory Comm ittee Note. One striking consistency between the two proceedings, however, i s the courts' continual inconsistent treatment of those proceedings.

For instance, for some procedural purposes, habeas proceedings are considered "civil." See, e.g., Browder v. Director, Illinois Dept. of Corrections , 434 U.S. 257, 269 (1978) ("It is well settled that habeas corpus is a civil proceeding."); Ex parte Tom Tong , 108 U.S. 556, 559-60 (1883) (habeas corpus review is a civil proceeding because its purpose is to enforce civil rights). Yet for other purposes, they are not. See, e.g. , Harris v. Nelson , 394 U.S. 286, 293-94 (1969) ("Essentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice on ly in a general sense."); Ewing v. Rodgers , 826 F.2d 967, 971 (10th Cir. 1987) (holding habea s corpus is not a "civil action" for purposes of the Equal Access to Justice Act provision for award of attorney fees to prevailing party).

The same inconsistency exists in the treatment of § 2255 proceedings. In United States v. Gutierrez , 839 F.2d 648, 651 (10th Cir. 1988), this court he ld the7In light of Congress' sweeping changes to the statutes surrounding

prisoner litigation as reflected in the Antiterrori sm and Effective Death Penalty Act and the Prison Litigation Reform Act, the appli cability and/or continuing validity of the Rules Governing § 2254 and § 2255 i s uncertain. Cook also relied on the Rules Governing Section 2255 Pr oceedings to hold because § 2255 proceedings are a continuation to th e criminal matter, filing fees or leave to proceed in forma pauperis is not required. However, even assuming the continuing validity of the Rules Governing § 22 55 Proceedings, we note our decision here is consistent with that in Cook, 997 F.2d at 1315-16, 1319. In fact, our decision here flows logically from Cook . By deciding a § 2255 proceeding is not a "civil action" for purposes of 28 U.S.C. § 19 15's mandatory fee provisions, we are not precluding § 2255's criminal nature in this or other contexts.

-12- Federal Rules of Civil Procedure apply to a motion to dismiss a § 2255 motion. However, in Cook, 997 F.2d 1312, this court relied on the Rules Gov erning Section 2255 Proceedings to determine a § 2255 proc eeding is a continuation of the original criminal matter such that it is inappr opriate for a district court to dismiss such motions as frivolous under 28 U.S.C. § 1915(d). 7

Further, while the Rules Governing § 2255 proceedin gs recognize the general concept that a § 2255 proceeding is a furth er step in the original criminal
case, see Rules Governing Section 2255 Proceedings, Rules 1, 3, and accompanying Advisory Committee Notes, in United States v. Frady , 456 U.S. 152, 167 (1982), the Court refused to apply the "pl ain error" standard of Fed. R. Crim. P. 52(b) to § 2255 proceedings. Consequently , like habeas proceedings,-13-

§ 2255 proceedings remain beyond the ambit of a tra ditional "civil" or "criminal" characterization in all contexts.

The precise nature of § 2255 proceedings and § 2254 proceedings remains highly dependent on the proceedings' context. The fact that the nature of habeas and § 2255 proceedings is one of consistent inconsi stency, however, does not trouble us, for in some instances, "[a] foolish con sistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Emerson, Self Reliance , in Essays: First Series (1841).

Because neither habeas nor § 2255 proceedings can b e uniformly characterized and because the context of the issue before us is narrow and well defined -- the scope of the Prison Litigation Reform Act fee provisions -- we find it analytically useful to consider habeas and § 225 5 proceedings together. This is not to say, however, that we intend to group two an imals of different genera into the same species outside this narrow context. Rath er, today, we consider only whether the term "civil action" as used in the Pris on Litigation Reform Act extends to habeas and § 2255 actions. This analyti cal framework finds support in our sister circuits' treatment of the identical iss ue. See, e.g., Santana , 98 F.3d at 753-56; Martin , 96 F.3d at 855-56.-14-

Indeed, it is because the nature of habeas and § 22 55 actions is imprecise and contextually dependent that Congress' failure t o define the term "civil action" in the context of the Prison Litigation Reform Act renders the statute ambiguous. Therefore, we consider the statute's intent and purpose to aid in our interpretation.
See Santana , 98 F.3d at 755-56; see also, Ewing , 826 F.2d at 970.

We agree with the other circuits that have consider ed the issue that the legislative history and purpose of the newly amende d 28 U.S.C. § 1915 show the filing fee requirements of that statute were not in tended to extend to habeas or § 2255 proceedings. The main purpose of the Prison L itigation Reform Act was to curtail abusive prison-condition litigation. See, e.g. , 141 Cong. Rec. S7498-01 (daily ed. May 25, 1995) (statement of Sen. Dole) ( the Prison Litigation Reform Act will limit prisoner-condition lawsuits "claimin g such grievances as insufficient storage locker space, being prohibitedfrom attending a wedding anniversary party, and yes, being served creamy peanut butter instead of the chunky variety they had ordered."). Additionally, 28 U.S.C. § 1915 was amended to provide an "economic disincentive" to abusive li tigation. See id. However, unlike the filing fee for a civil action, which is $120.00, the filing fee for habeas actions is $5.00, an amount Congress' amendments fa iled to increase. 28 U.S.C. § 1914(a); see also Santana , 98 F.3d at 756; Reyes , 90 F.3d at 678.-15-

Furthermore, the Antiterrorism and Effective Death Penalty Act, enacted two days before the Prison Litigation Reform Act, d eals extensively with successive habeas and § 2255 actions; had Congress wanted to reform the fee provisions for habeas and § 2255 actions, it would have been appropriate to do so there. See Cole , 101 F.3d at 1077 ; Santana , 98 F.3d at 755; Martin , 96 F.3d at 855; Reyes , 90 F.3d at 678. Finally, newly added 28 U.S.C. § 1915(g) limits a prisoner proceeding in forma pauperis to three frivolous "civil action" suits or appeals in a lifetime unless the prisoner is under "imminent danger of serious physical injury." If "civil action" includes habea s and § 2255 proceedings in the context of 28 U.S.C. § 1915, conceivably, a prisone r who had brought three frivolous prisoner-condition lawsuits would be proh ibited from bringing a first habeas or § 2255 action. Certainly, such a result "would be contrary to a long tradition of ready access of prisoners to federal h abeas corpus." Martin , 96 F.3d at 855-56. For the above reasons, we conclude the intent and purpose of the Prison Litigation Reform Act shows the phrase "civi l action" in 28 U.S.C. § 1915 was not meant to apply to habeas corpus and 28 U.S. C. § 2255 proceedings.

Our decision in Green does not require a different result. 90 F.3d at 4 18.
In Green , this circuit determined a petition for writ of ma ndamus, filed in the course of a habeas proceeding, was a "civil action" under 28 U.S.C. § 1915 such-16-

that it was subject to § 1915's filing fee provisio ns. Id. A careful reader of
Green may conclude any "complaint" or "lawsuit" filed bya prisoner is subject to 28 U.S.C. § 1915's fee provisions. Id. However, such a reading would be in
error. In Green , the prisoner sought not only to hasten his habeas petition, but also sought to have this court order the district c ourt to adopt new rules and procedures in order to expedite its habeas review p rocess. Id. at 416. By the time
Green was filed, most of Mr. Green's complaints regardin g his habeas petition were moot such that Green was decided in a context closely resembling a prisoner-condition lawsuit. Id. at 416 n.1.

Furthermore, in Green , we were specifically concerned with prisoners usi ng writs of mandamus to subvert § 1915's intent to curtail abusive litigation; "[a]llowing prisoners to continue filing actions as they had before enactment of the amendments, merely by framing pleadings as peti tions for mandamus would allow a loophole Congress surely did not intend in its stated goal of 'discourag[ing] frivolous and abusive prison lawsui ts.'" Id. at 418. Here, we are not faced with the same concern. By concluding "ci vil action" does not include habeas or § 2255 actions, we are not, contrary to C ongress' intent, creating a back door through which prison-condition litigation is a dmitted without first requiring a prisoner to satisfy 28 U.S.C. § 1915's fee provis ions. Rather, we leave ready8Specifically, 28 U.S.C. § 2255 provides: A 1-year period of limitation shall apply to a moti on under this section. The limitation period shall run from the latest of -- (1) the date on which the judgment of conviction be comes -17- access of prisoners to habeas and § 2255 remedies C ongress has not intended to restrict through the fee provisions of 28 U.S.C. § 1915.

Additionally, we do not believe the language of 28 U.S.C. § 1915(b)(1) requires a prisoner to pay the full amount of a fil ing fee for all appeals, regardless of the appeal's nature. While the language of § 19 15(b)(1) refers to "a civil action or ... an appeal," we agree with the Seventh and Se cond Circuits that read in context, the word "appeal" means an appeal of a civ il action. Martin , 96 F.3d at 854; Reyes , 90 F.3d at 678. Reading 28 U.S.C. § 1915(b)(1)(B ) and § 1915(a)(2) together makes plain only a prisoner's filing of a "civil action or appeal ... in a civil action" triggers the fee provisions of § 1915 (b)(1). Therefore, we hold neither habeas corpus or 28 U.S.C. § 2255 proceedin gs, nor appeals of those proceedings are "civil actions" for purposes of 28 U.S.C. § 1915.

C. Amended Time-Limit Provision of 28 U.S.C. § 225 5 The Antiterrorism and Effective Death Penalty Act amended 28 U.S.C. § 2255 by adding a time-limit provision for § 2255 motions. 8 As amended, 28final; (2) the date on which the impediment to making a mo tion created by governmental action in violation of the Constitution or laws of the United States is removed, if the mov ant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initia lly recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactiv ely applicable to cases on collateral review; or (4) the date on which the fact supporting the claim or claims presented could have been discovered through the ex ercise of due diligence.

9Mr. Simmonds does not appear to rely on any of th e three remaining subsections of 28 U.S.C. § 2255; therefore, we limi t our analysis to 28 U.S.C. § 2255(1). -18- U.S.C. § 2255 precludes a prisoner from filing a § 2255 motion more than one year after the conviction becomes final. 9 28 U.S.C. § 2255(1). Prior to this amendment, "a party could bring a § 2255 motion at any time." Lopez , 100 F.3d
at 116. Mr. Simmonds' conviction became "final" after the S upreme Court denied certiorari on October 7, 1991. United States v. Simmonds , 931 F.2d 685 (10th Cir.), cert. denied, 520 U.S. 840 (1991); see United States v. Cuch , 79 F.3d 987, 991 n.9 (10th Cir.) (quoting Griffith v. Kentucky , 479 U.S. 314, 321 n.6 (1987)) (a final conviction is one in which the Supreme Court has denied a petition for certiorari), cert. denied, 117 S. Ct. 384 (1996). Therefore, literal applic ation of the amended statute would bar Mr. Simmonds' § 2255 motion as of October 7,10Because the time limit in 28 U.S.C. § 2255 has no express effective date

provision, the effective date is April 24, 1996, th e day the President signed the bill into law. See Gozlon-Peretz v. United States , 498 U.S. 395, 404 (1991); Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996).

-19- 1992, more than three years prior to the amended st atute's effective date. 10 In Lopez , we held the amended one-year limitation period do es not apply to § 2255 motions filed before April 24, 1996. 100 F.3d at 1 16-17. However, because Mr. Simmonds filed his motion well after that date, we now consider whether application of the new time period limitation to Mr . Simmonds' motion would be impermissibly retroactive.

"When a case implicates a federal statute enacted a fter the events giving rise to the suit," absent clear Congressional intent to the contrary, a presumption against retroactive legislation should apply. Landgraf , 511 U.S. at 280. The presumption against retroactivity is "deeply rootedin our jurisprudence, and embodies a legal doctrine centuries older than our Republic." Id. at 265. Retroactivity concerns are guided by "consideration s of fair notice, reasonable reliance, and settled expectations." Id. at 270.

Generally, retroactivity concerns do not bar a chan ged limitation period's application to a suit filed after the amendment's e ffective date. See, e.g., Forest-20-

v. United States Postal Serv. , 97 F.3d 137, 139-40 (6th Cir. 1996); Vernon v. Cassadaga Valley Cent. Sch. Dist. , 49 F.3d 886, 890 (2d Cir. 1995). However, a new time limitation cannot be so unfairly applied t o bar a suit before the claimant has had a reasonable opportunity to bring it. Inde ed, the Supreme Court has explained: "It may be properly conceded that all statute of li mitations must proceed on the idea that the party has full opportu nity afforded him to try his right in the courts. A statute could no t bar the existing rights of claimants without affording this opportun ity; if it should attempt to do so, it would not be a statute of limi tations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the comm encement of suits upon existing causes of action ...."

Texaco, Inc. v. Short , 454 U.S. 516, 527 n.21 (1982) (quoting Wilson v. Iseminger , 185 U.S. 55, 62-63 (1902)). See also, Derstein v. Van Buren , 828 F.2d 653, 655 (10th Cir. 1987) (refusing to retroactivel y apply new limitations period where new time period had already expired); Hanner v. Mississippi , 833 F.2d 55, 57 (5th Cir. 1987) (shortened limitation period barring pre-accrued claims must first provide plaintiffs with a "reasonable time" t o file); Anton v. Lehpamer , 787 F.2d 1141, 1146 (7th Cir. 1986) (allowing two-year grace period to avoid unfair application of new limitations period).-21-

Applying the amended statute of limitations to Mr. Simmonds' § 2255 motion would be "entirely unfair and a severe instance of retroactivity." Reyes , 90 F.3d at 679 (holding new time period of 28 U.S.C . § 2244(d) inapplicable to pending habeas petition where period ended before amendment's effective date); See also , Lindh v. Murphy , 96 F.3d 856, 866 (7th Cir. 1996), cert. granted on other grounds , 117 S. Ct. 726, (1997). Prior to the amended 28 U.S.C. § 2255's effective date, Mr. Simmonds had every right to bri ng, and every fair expectation to believe a court would entertain his 28 U.S.C. § 2255 motion. Applying the new time limitation to his claim would mean that on the day of April 24, 1996, without prior notice or opportunity to act, Congres s stripped Mr. Simmonds' rights and fair expectations as of three years prio r to that date. This we cannot allow. A statute cannot retroactively bar a prison er from his or her ability to have a court consider the propriety of a § 2255 motion w ithout first having a reasonable time to bring the claim; additionally, t here is no indication Congress intended to foreclose prisoners who had no prior no tice of the new limitations period from bringing their § 2255 motions.

Therefore, we hold application of the new time peri od to Mr. Simmonds' § 2255 motion without first affording him a reasonable time to bring his claim impermissibly retroactive. Furthermore, we hold th e one-year limitations period11 The government concedes the new time limit provis ion of 28 U.S.C.

§ 2255 does not apply to this case.

-22- reflected in the amended 28 U.S.C. § 2255 is also areasonable time for prisoners to bring § 2255 motions whose convictions became fi nal before the Antiterrorism and Effective Death Penalty Act took effect. Accor dingly, prisoners whose convictions became final on or before April 24, 199 6 must file their § 2255 motions before April 24, 1997. See Lindh , 96 F.3d at 866 (the time period imposed by the Antiterrorism and Effective Death Pe nalty Act is "short enough that the 'reasonable time' after April 24, 1996, an d the one-year statutory period coalesce; reliance interests lead us to conclude th at no collateral attack filed by April 23, 1997, may be dismissed under [28 U.S.C.] § 2244(d) and ... 28 U.S.C. § 2255."). Consequently, because Mr. Simmonds file d his § 2255 motion prior to April 23, 1997, we hold the motion was timely. 11

D. Certificate of Appealability The Antiterrorism and Effective Death Penalty Act r equires a certificate of appealability be granted before a prisoner may appe al a § 2255 motion's denial. 28 U.S.C. § 2253(c)(1). A certificate of appealabi lity may issue only if "the applicant has made a substantial showing of the den ial of a constitutional right."-23-

28 U.S.C. § 2253(c)(2). We hold Simmonds has faile d to satisfy this burden and, accordingly, we deny his certificate of appealabili ty.

Mr. Simmonds claims he was unconstitutionally denie d effective assistance of counsel during his original criminal trial, and that he was entitled to an evidentiary hearing in the district court to support the claim. To satisfy a claim of ineffective assistance, a claimant must show both that counsel's performance fell below professional norms, and that the deficient pe rformance was prejudicial to his defense. Strickland v. Washington , 466 U.S. 668, 687 (1984); Romero v. Tansy , 46 F.3d 1024, 1029 (10th Cir.), cert. denied, 115 S. Ct. 2591 (1995). Specifically, Mr. Simmonds argues his trial counsel was ineffective for failing to request a jury instruction on diminished capacity. During his direct appeal, Mr. Simmonds argued the district court committed plain error in failing to instruct the jury on diminished capacity. Simmonds , 931 F.2d at 686. This court held that even if the instruction on diminished capacity were warranted, "the district court's instructions on specific intent were sufficient." Id. at 689. Consequently, even assuming Mr. Simmonds counsel's performance fell be low professional norms, Mr. Simmonds has failed to show how his trial couns el's failure to request the jury instruction was so prejudicial to his defense so as to deprive him "of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687.12To the extent Mr. Simmonds' 28 U.S.C. § 2255 moti on raises additional

issues, upon thorough review we find nothing in the record to support his contentions and accordingly deny a certificate of appealability.

-24- Additionally, Mr. Simmonds was not entitled to an e videntiary hearing before the district court to support his claim of i neffective assistance. In a § 2255 proceeding, the district court is not required to h old an evidentiary hearing on a prisoner's claims where "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also United States v. Galloway , 56 F.3d 1239, 1240 n.1 (10th Cir. 1995). Because the records of the case conclusively show the prisoner is entitled to no relief, we hold Mr. Simmonds was not entitled to anevidentiary hearing. Consequently, because Mr. Simmonds failed to make asubstantial showing of a denial of a constitutional right, we deny his appli cation for certificate of appealability. 12

Accordingly, we DENY Mr. Simmonds' application for a certificate of appealability and DISMISS the appeal.