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

BeforeLUCERO , 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 on1 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