* After examining the Appellant’s brief 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 

### 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 con victed after a jury trial of violations of the Resource Co nservation and Recovery Act, 42-2-

U.S.C. §§ 6901-6992, and of conspiracy to manufactu re and distribute methamphetamine in violation of 21 U.S.C. § 846 and18 U.S.C. § 2. He was sentenced to 240 months of imprisonment. His convi ction 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 “Applic ation for Nunc Pro Tunc Order to Modify the Judgment” with the district cou rt. In a minute order dated June 10, 2003, the district court construed this mo tion 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. Appella nt 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 cons titutional 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) th e petition should have been resolved in a different manner or that the issues p resented 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 in itial 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 recharacteri zation, thereby giving the litigant an opportunity to conte st the recharacterization, or to withdraw or amend the mot ion. 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 cas e.” Id. This remand would allow the pro se litigant the opportunity to make “all . . . collat eral § 2255 arguments in a single § 2255 motion” alleviating th e adverse consequence of having a subsequent § 2255 motion being barred as s uccessive. 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 whe n Appellant filed his Application. Notification of the recharacterizatio n would not change the fact that the limitation period for filing a § 2255 motion ha d long since passed.-4-

Since any § 2255 motion filed by Appellant in the i nstant case would be time barred, the district court’s failure to notifyAppellant of the recharacterization was harmless. [Appellant’s] § 2255 motion is governed by the Anti terrorism and Effective Death Penalty Act (AEDPA), which establis hes a one-year limitations period for federal prisoners seeking habeas relief. If a prisoner does not file a petition for writ of certi orari with the United States Supreme Court after his direct appeal, the o ne-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 rehearin g. United States v. Hurst , 322 F.3d 1256, 1259 (10th Cir. 2003) (internal ci tations, quotations, and footnotes omitted). We affirmed Ap pellant’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 Sup reme Court. Therefore, the oneyear limitation period began to run ninety days aft er we affirmed Appellant’s conviction. Appellant’s current motion was filed o n June 2, 2003, just short of two years past the expiration of the limitation per iod. 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 ou r standards for the grant of a certificate of appealability.-5-

We DENY Petitioner’s request for a certificate of appealabi lity and DISMISS the appeal. Appellant’s Petition for Writ of Mand amus is DENIED

.
Entered for the Court
Monroe G. McKay Circuit Judge