*After examining the Appellant’s brief 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); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 9 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

v. No. 03-7075 

(D.C. No. CR-97-47(2)-P)

DANIEL ROBERT MARTIN,

Defendant-Appellant.

 

ORDER

Submitted on the briefs:*

Daniel Robert Martin, pro se.

Before TACHA, Chief Circuit Judge, McKAY and McCONNELL, Circuit

Judges.

This is a pro se 28 U.S.C. § 2255 appeal. Appellant Martin was convicted

after a jury trial of violations of the Resource Conservation and Recovery Act, 42
-2-

U.S.C. §§ 6901-6992, and of conspiracy to manufacture and distribute

methamphetamine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. He was

sentenced to 240 months of imprisonment. His conviction was affirmed by a

panel of this court in United States v. Martin, No. 98-7097 (10th Cir. April 5,

2000). On June 2, 2003, Appellant filed an “Application for Nunc Pro Tunc

Order to Modify the Judgment” with the district court. In a minute order dated

June 10, 2003, the district court construed this motion as a request for relief

pursuant to 28 U.S.C. § 2255 and denied the motion as time barred. Appellant

filed a notice of appeal on June 27, 2003. Appellant also filed a Petition for Writ

of Mandamus addressed to the Tenth Circuit, but he mailed the mandamus to the

district court. We received the forwarded mandamus on July 10, 2003. Since the

district court declined to grant a certificate of appealability, we will first need to

address this issue.

In order for this court to grant a certificate of appealability, Petitioner must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To do so, Petitioner must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotations omitted).
-3-

Our review of Appellant’s Application raised the initial concern that the

district court failed to notify Appellant that his Application for Nunc Pro Tunc

Order to Modify the Judgment was going to be construed as a § 2255 motion for

habeas corpus. 

[A] district court may not recharacterize a pro se litigant’s motion as

a request for relief under § 2255 – unless the court first warns the

pro se litigant about the consequences of the recharacterization,

thereby giving the litigant an opportunity to contest the

recharacterization, or to withdraw or amend the motion.

Castro v. United States, __ U.S. __, 124 S. Ct. 786, 792 (2003). This has been

the law in our circuit for several years. See United States v. Kelly, 235 F.3d

1238, 1242 (10th Cir. 2000). The usual remedy for such a failure is to “vacate the

court’s order denying the motion and remand the case.” Id. This remand would

allow the pro se litigant the opportunity to make “all . . . collateral § 2255

arguments in a single § 2255 motion” alleviating the adverse consequence of

having a subsequent § 2255 motion being barred as successive. Id. at 1241, 1242.

In Kelly, we remanded because, but for the district court’s error, the litigant

would have had several months remaining in which to file a timely § 2255 motion

before the limitation period expired. See id. at 1242. However, in our case, the

deadline for filing a § 2255 motion had expired when Appellant filed his

Application. Notification of the recharacterization would not change the fact that

the limitation period for filing a § 2255 motion had long since passed. 
-4-

Since any § 2255 motion filed by Appellant in the instant case would be

time barred, the district court’s failure to notify Appellant of the

recharacterization was harmless. 

[Appellant’s] § 2255 motion is governed by the Antiterrorism and

Effective Death Penalty Act (AEDPA), which establishes a one-year

limitations period for federal prisoners seeking habeas relief. If a

prisoner does not file a petition for writ of certiorari with the United

States Supreme Court after his direct appeal, the one-year limitation

period begins to run when the time for filing a certiorari petition

expires. A petition for a writ of certiorari must be filed within ninety

days after denial of a timely petition for rehearing.

United States v. Hurst, 322 F.3d 1256, 1259 (10th Cir. 2003) (internal citations,

quotations, and footnotes omitted). We affirmed Appellant’s conviction on direct

appeal on April 5, 2000. The record reflects that Appellant did not file a petition

for a writ of certiorari with the United States Supreme Court. Therefore, the oneyear limitation period began to run ninety days after we affirmed Appellant’s

conviction. Appellant’s current motion was filed on June 2, 2003, just short of

two years past the expiration of the limitation period. 

We have carefully reviewed Mr. Martin’s brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Appellant’s brief raises an issue which meets our standards for the grant of a

certificate of appealability. 
-5-

We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal. Appellant’s Petition for Writ of Mandamus is DENIED.

Entered for the Court

Monroe G. McKay

Circuit Judge