* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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 

### APR 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Respondent - Appellee,

v. TAALIBDIN ABDUL AL-AMIN, also known as Troy Allen Outlaw,

Petitioner - Appellant. No. 98-1395 (D. Ct. No. 98-S-1707) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Petitioner, acting pro se, appeals a district courtorder denying his motion for reconsideration of an order of dismissal that c onstrued his petition as a motion- 2 -

pursuant to 28 U.S.C. § 2255 (1994 & Supp. 1998) to vacate his sentence. In this court, petitioner Al-Amin seeks a certificate of appealability and has filed a motion for voluntary dismissal of his appea l. We deny a certificate of appealability and deny the motion for a voluntary d ismissal. Petitioner Al-Amin has proceeded pro se throughout the course of this action, which he originally filed in the district c ourt as a “Notice & Ex Parte Petition Pursuant to FRCP Rule 60(b).” He argued that the government fraudulently obtained his guilty plea and that the court should allow him to withdraw the guilty plea based on this circuit’s panel opinion in United States v. Singleton , 144 F.3d 1343 (10th Cir. 1998), rev’d en banc , 165 F.3d 1297 (10th Cir. 1999). On October 20, 1994, petitioner pled guilty in the District of Colorado to an indictment and an information charging a criminal f orfeiture. The district court sentenced him to a term of 120 months imprisonment, followed by five years of supervised release. Petitioner did not file a dire ct appeal from that conviction and sentence. Instead, he filed for a writ of habeas c orpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the So uthern District of Illinois, claiming that his federal sentence was unlawful. T he district court in Illinois determined that because petitioner was attacking hi s federal sentence, he should have filed a motion under 28 U.S.C. § 2255. The co urt dismissed the petition- 3 -

without prejudice for lack of jurisdiction. The Un ited States Court of Appeals for the Seventh Circuit summarily affirmed the dismissa l. The Seventh Circuit further denied petitioner’s motion for reconsiderat ion. Mr. Al-Amin filed a petition for a writ of certiorari which the United States Supreme Court denied in Al-Amin v. Seiter , 118 S. Ct. 1313 (1998). The Supreme Court also d enied petitioner’s motion for rehearing. See Al-Amin v. Seiter , 118 S. Ct. 1691 (1998). Following the Supreme Court’s denial of certiorari and reconsideration, Mr. Al-Amin filed the “Notice & Ex Parte Petition Pursu ant to F.R.C.P. 60(b)” at issue here in the District of Colorado. The distri ct court construed Mr. Al-Amin’s petition liberally as a motion pursuant to 28 U.S.C . § 2255 (1994 & Supp. 1998) and denied the petition as barred by the one-year s tatute of limitations in § 2255. Petitioner subsequently filed a “Motion for Reconsi deration” which the district court liberally construed as a Fed. R. Civ. Pro. 60 (b) motion seeking relief from judgment. The district court denied this motion, r estating its reasons contained in the order of dismissal. We affirm. We, like the district court, construe appellant’s f ilings in this court liberally because he represents himself. See, e.g. , Haines v. Kerner , 404 U.S. 519, 520-21 (1972). The district court generously construed th e motion for reconsideration as a motion seeking relief from judgment pursuant to F ed. R. Civ. P. 60(b). We agree that petitioner is not entitled to relief und er Fed. R. Civ. P. 60(b) and- 4 -

further agree that the motion in the district courtwas properly construed as a motion brought pursuant to 28 U.S.C. § 2255. A pri soner whose conviction and sentence became final on or before April 24, 1996 c annot seek relief pursuant to § 2255 unless he or she filed the motion before April 24, 1997. See United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). Clearly, Mr. Al-Amin’s conviction became final well before April 24, 1996, and is time-barred by the one-year limitations period. This court has reviewed petitioner’s request for a certificate of appealability and appellate brief, the district cou rt order, and the entire record on appeal. Our review demonstrates that the district court’s orders denying relief are not deserving of further proceedings, debatable amo ng jurists of reason, or subject to different resolution on appeal. See Barefoot v. Estelle , 463 U.S. 880, 893 (1983). Accordingly, petitioner has not made a sub stantial showing of the denial of a constitutional right and is not entitled to a certificate of appealability. 28 U.S.C. § 2253(c)(1)(b) (1994 & Supp. 1998). Furthe r, because we have acted on the request for a certificate of appealability, we deny appellant’s motion for voluntary dismissal.

ENTERED FOR THE COURT, Deanell Reece Tacha Circuit Judge