* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### NOV 24 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. DAMON JOE NELSON,

Defendant-Appellant. No. 98-3144 (D.C. No. 97-3191-EEO) (D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO, BARRETT, and KELLY , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct sentence, based on the following a llegations of ineffective assistance of counsel: (1) refusal to permit defen dant to testify; (2) failure to interview and subpoena witnesses identified by defe ndant; (3) refusal to cross-examine co-defendants as requested by defendant; (4) failure to challenge an inculpatory statement attributed to defendant wh ich he informed counsel he had never made; and (5) cumulative error. Defendant also seeks a certificate of appealability (COA) under 28 U.S.C. § 2253(c). The district court denied COA because, for the reasons stated in its order on the merits of the § 2255 motion, defendant had not “made a substantial showing of th e denial of a constitutional right.” § 2253(c)(2). We likewise deny COA, noting a defici ency in defendant’s case even more basic than that evident from the ext ended legal analysis contained in the district court’s order on the merits. As amended by the Antiterrorism and Effective DeathPenalty Act of 1996 (AEDPA), § 2255 imposes a one-year limitations period in whic h to challenge a final federal conviction. This court has held that“prisoners whose convictions became final on or before April 24, 1996 [AEDPA’s p ertinent effective date] must file their § 2255 motions before April 24, 1997 .” United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997) (emphasis added); accord Goodman v. United States , 151 F.3d 1335, 1337 (11th Cir. 1998); Brown v.-3-

Angelone , 150 F.3d 370, 375 (4th Cir. 1998) (noting “vast m ajority of courts addressing this question” are in accord with Simmonds ). This court affirmed defendant’s conviction in Augus t of 1991. However, according to his own certificate of service, defendant did not file his § 2255 motion, by delivering a copy to prison officials fo r forwarding to the district court, see Fed. R. App. P. 4(c); 25(a)(2)(C); Houston v. Lack , 487 U.S. 266, 270 (1988), until April 24, 1997. The motion was there fore untimely. And, as all of counsel’s challenged conduct concerned matters of which defendant had long been aware -- indeed, matters he allegedly urged up on counsel at the time of trial -- there is no basis for deviating from “the apparently firm deadline of April 24, 1997 . . . for motions . . . under § 2255.” Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998) (contrasting equitable tolling considerations applicable in § 2254 context, where “[t]he situation is entirely d ifferent”). We DENY defendant’s request for a certificate of ap pealability and DISMISS the appeal.

Entered for the Court

John C. Porfilio Circuit Judge