## F I L E D United States Court of Appeals Tenth Circuit 

### January 19, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ASENCION MICHEL-GALAVIZ,

Defendant-Appellant. No. 05-4146 (D. Utah) (D.C. Nos. 2:05-CV-00384-JTG and 2:98-CR-601-001-JTG)

ORDER

Before EBEL , McKAY , and HENRY , Circuit Judges.

After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. P. 34(a); 10 TH C IR
. R. 34.1(G). Asencion Michel-Galaviz, a federal prisoner proceed ing pro se, seeks a certificate of appealability (“COA”) to appeal the district court’s decision dismissing as untimely his 28 U.S.C. § 2255 petitio n for a writ of habeas corpus. We deny Mr. Michel-Galaviz’s application for a COA and dismiss this appeal.-2- I. BACKGROUND On May 4, 1999, Mr. Michel-Galaviz pleaded guilty i n a four-count indictment to (a) illegal entry of a deported alien , in violation of 8 U.S.C. § 1326; (b) possession of a controlled substance with inten t to distribute, in violation of 21 U.S.C. § 841(a)(1); (c) being a felon in possess ion of a firearm, in violation of 18 U.S.C. § 922(g)(1); and (d) being an illegal ali en in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). The district c ourt sentenced him to 151 months’ imprisonment, and it entered judgment on Ju ly 28, 1999. He did not file a direct appeal challenging his sentence or the und erlying conviction. On April 27, 2005, Mr. Michel-Galaviz filed a petit ion in district court to vacate his sentence under 28 U.S.C. § 2255. He mai ntained that the district court erred when it used a prior robbery conviction as th e basis for a career-offender enhancement. The district court dismissed the peti tion, concluding that the “claim is untimely and barred as a matter of law, b eing far beyond the period of limitation set forth in 28 U.S.C. § 2255.” Rec. do c. 5, at 2 (Order, filed May 24, 2005). The district court did not act on the issua nce of a COA, and a COA was thus deemed denied under our Emergency General Orde r of October 1, 1996.
II. DISCUSSION We review Mr. Michel-Galaviz’s petition under the A ntiterrorism and Effective Death Penalty Act of 1996. We may issue a COA and entertain his-3-

appeal only if he “has made a substantial showing o f the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “[W]hen the distr ict court denies a habeas petition on procedural grounds,” as is the case her e, we issue a COA “if the prisoner shows, at least, that jurists of reason wo uld find it debatable whether the petition states a valid claim of the denial of a co nstitutional right, and that jurists of reason would find it debatable whether the distr ict court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 478 (2000). The decision to grant a COA turns on the applicatio n of 28 U.S.C. § 2255, which provides that a habeas petition must be filed within one year from the latest of: (1) the date on which the judgment of conviction be comes final; (2) the date on which the impediment to making a mot ion created by governmental action in violation of the Constitutio n or laws of the United States is removed, if the movant was pre vented from making a motion by such governmental action; (3) the date on which the right asserted was initia lly recognized by the Supreme Court, if that right has been newly rec ognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the clai m or claims presented could have been discovered through the ex ercise of due diligence. The district court entered judgment on Mr. Michel-G alaviz’s conviction on July 28, 1999. Because he did not appeal his sente nce, his judgment of conviction became final ten days later, when his claim could n o longer be subject to appellate review. See F ED
. R. A PP . P. 4(b)(1)(A) (“In a criminal case, a-4-

defendant’s notice of appeal must be filed in the d istrict court within 10 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government’s notice of appeal.”). Mr. Michel-Galaviz did not file his habeas petition in district court until Ap ril 2005, well after the one-year limitation period under subsection (1) had expired. Furthermore, Mr. Michel-Galaviz offers no arguments under subsections (2), (3), or (4) of § 2255, and he does not contend that the one-year limitation period should be statutorily or equitably tolled.
III. CONCLUSION Reasonable jurists would not debate the district co urt’s conclusion that Mr. Michel-Galaviz’s habeas petition was untimely. Acc ordingly, we DENY his application for a COA and DISMISS the appeal.

Entered for the Court,

Robert H. Henry Circuit Judge