* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or 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 19 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. RICHARD BURDELL THOMPSON, Defendant-Appellant. No. 97-4189 (D.C. No. 97-CV-561J) (Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , 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 cause is therefore ordered submitted without oral argument.1 The Act provides in relevant part that a one-year limitation period shall

apply to a motion under section 2255, running from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255.

2By General Order, “this court directs the districtcourts to consider the propriety of issuing certificates of appealability in the first instance. Failure of the district court to issue a certificate of appeal ability within thirty days of filing the notice of appeal shall be deemed a denial.” Ge neral Order of October 1, 1996. Because the district court did not act on Mr . Thompson’s motion for a certificate of appealability, we deem it denied by the district court and consider the motion Mr. Thompson filed here. -2- Richard Burdell Thompson was convicted of drug and firearms violations in August 1992 and sentenced to 150 months in Octob er 1992. On July 18, 1997, he filed a motion to vacate, set aside or correct h is sentence under 28 U.S.C. § 2255. The district court dismissed the motion as u ntimely under the one-year limitation period established by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (AEDPA), which amended section 2255 by imposing a time limit on mo tions under that section. 1 Mr. Thompson appeals and applies for a certificate of appealability. 2 We deny his application and dismiss his appeal. In United States v. Simmonds , 111 F.3d 737 (10th Cir. 1997), this court addressed the applicability of AEDPA’s one-year lim itation period to convictions that, as here, had become final prior to the Act’s effective date of April 24, 1996. We held that prisoners such as Mr. Thompson must be given a reasonable time after passage of the Act to bring their claims, and we further held that the one--3-

year period provided by the Act “is also a reasonable time for prisoners to bring § 2255 motions whose convictions became final befor e the [AEDPA] took affect. Accordingly, prisoners whose convictions became fin al on or before April 24, 1996 must file their § 2255 motions before April 24 , 1997.” Id. at 746. Mr. Thompson’s conviction became final in 1992. He did not file his section 2255 motion until July 18, 1997, well beyon d the April 24, 1997, deadline established by our holding in Simmonds . Accordingly, his motion is not timely. Because Mr. Thompson has not “made a substantial sh owing of the denial of a constitutional right” as required for the issu ance of a certificate of appealability, 28 U.S.C. § 2253(c)(2), we DENY his motion for a certificate and DISMISS the appeal. ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge