* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The 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

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, 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.
-2-

Defendant appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set

aside or correct sentence, based on the following allegations of ineffective

assistance of counsel: (1) refusal to permit defendant to testify; (2) failure to

interview and subpoena witnesses identified by defendant; (3) refusal to

cross-examine co-defendants as requested by defendant; (4) failure to challenge

an inculpatory statement attributed to defendant which 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 the denial of a constitutional

right.” § 2253(c)(2). We likewise deny COA, noting a deficiency in defendant’s

case even more basic than that evident from the extended legal analysis contained

in the district court’s order on the merits. 

As amended by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), § 2255 imposes a one-year limitations period in which to challenge a

final federal conviction. This court has held that “prisoners whose convictions

became final on or before April 24, 1996 [AEDPA’s pertinent 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.
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Angelone , 150 F.3d 370, 375 (4th Cir. 1998) (noting “vast majority of courts

addressing this question” are in accord with Simmonds ). 

This court affirmed defendant’s conviction in August of 1991. However,

according to his own certificate of service, defendant did not file his § 2255

motion, by delivering a copy to prison officials for 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 therefore untimely. And, as all of

counsel’s challenged conduct concerned matters of which defendant had long

been aware -- indeed, matters he allegedly urged upon 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 different”). 

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

DISMISS the appeal. 

Entered for the Court

John C. Porfilio 

Circuit Judge