FILED

United States Court of Appeals

Tenth Circuit

July 30, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUAN DESHANNON BUTLER,

Defendant - Appellant.

No. 09-5069

(N.D. Oklahoma)

(D.C. Nos. 4:08-CV-00527-CVE-PJK

and 4:05-CR-00004-CVE-1)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before LUCERO, MURPHY, and McCONNELL, Circuit Judges. 

Petitioner, Juan Deshannon Butler, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s dismissal of the motion to vacate,

set aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28

U.S.C. § 2253(c)(1)(B) (providing a movant may not appeal the disposition of a

§ 2255 motion unless he first obtains a COA). In 2006, Butler was convicted of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). 

United States v. Butler, 485 F.3d 569, 570 (10th Cir. 2007). Butler’s conviction

was affirmed by this court on May 7, 2007. Id. at 577. The instant § 2255

motion is dated September 3, 2008, and was filed in the district court on
1

The district court also concluded that a handwritten motion dated August

15, 2008, could not be construed as Butler’s § 2255 motion because it contained

no facts to support the ineffective assistance allegation. 

-2-

September 10, 2008. In the motion, Butler asserted several ineffective assistance

of counsel claims. 

The Government argued that Butler’s § 2255 motion was untimely because

it was filed more than one year after his conviction became final. See 28 U.S.C.

§ 2255(f) (setting forth a one-year statute of limitations for § 2255 motions). In

its order of dismissal, the district court determined the one-year limitations period

ended on August 6, 2008, one year after the time to file a petition for a writ of

certiorari to the United States Supreme Court expired. Clay v. United States, 537

U.S. 522, 524-25 (2003). The court concluded Butler was not entitled to

equitable tolling because he had failed to diligently pursue his claims and failed

to demonstrate that his failure to file a timely § 2255 motion was caused by

extraordinary circumstances beyond his control.1

 See Marsh v. Soares, 223 F.3d

1217, 1220 (10th Cir. 2000). Accordingly, the § 2255 motion was dismissed as

untimely. In his appellate brief, Butler argues the merits of the claims he seeks to

raise in his § 2255 motion. He does not address the district court’s procedural

ruling and presents no argument that the district court miscalculated the one-year

period or erroneously resolved the equitable tolling question. 

To be entitled to a COA, Butler must show “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” 
-3-

Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district

court dismisses a habeas petition on procedural grounds, a petitioner is entitled to

a COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). Our review of the record

demonstrates that the district court’s dismissal of Butler’s § 2255 motion as

untimely is not deserving of further proceedings or subject to a different

resolution on appeal. Accordingly, we deny Butler’s request for a COA and

dismiss this appeal. Butler’s request to proceed in forma pauperis on appeal is

granted. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge