UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE JESUS RAMIREZ-HERNANDEZ, Defendant - Appellant. No. 16-6234 (D.C. Nos. 5:16-CV-00675-C and 5:07-CR-00252-C-1) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ Jose Jesus Ramirez-Hernandez, a federal prisoner appearing pro se, 1 seeks a certificate of appealability (C OA) to challenge the denial of his 28 U.S.C. § 2255 habeas corpus motion. He al so seeks leav e to proceed in forma pauperis ( ifp ). Exercising jurisdiction under 28 U.S.C. § 1291, we grant ifp status, deny the COA, and dismiss his appeal.

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32.1.

1 Because Ramirez-Herna ndez appears pro se, we liberally construe his petition. Clark v. Oklahoma , 468 F.3d 711, 713 n.1 (10th Cir. 2006). FILED United States Court of Appeals Tenth Circuit 

### April 17, 2018
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Ramirez-Hernandez pleaded guilty to conspiracy to possess and distribute methamphetamine, see 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(viii), and possession of a firearm in fu rtherance of a drug trafficking crime, see 18 U.S.C. §924(c). In his plea agreement, Ramirez-Hernandez ackno wledged the 10-year mandatory-minimum sentence for the methamphetamine-conspiracy charge and the statutorily required 5- year consecutive sentence on the firearm charge . In addition, he agr eed to forfeit cash proceeds and firearms to the United States. In April 2008, the district court sentenced Ramirez-Hernandez to the requi red 180 months of imprisonment. In June 2016, Ramirez-Hernandez f iled a motion reques ting a reduction of sentence, relying on Johnson v. United States , 135 S. Ct. 2551. The district court noted that though the motion “could be co nstrued as asserti ng a 28 U.S.C. § 2255 Motion . . . [the] pleading is not on the fo rm required by” the local civil rules and “does not contain the information necessa ry for consideration as a § 2255 Motion.” R. vol. 1 at 121. The district court gave Ra mirez-Hernandez the opp ortunity to file a compliant motion. Instead, Ramirez-Hernandez filed a motion fo r reconsideration, which the district court denied. On August 5, 2016, Ramirez-He rnandez filed a notice of appeal from the denial of the motion for reconsideration. But on September 8, 2016, Ramirez-He rnandez filed a § 2 255 motion on the correct form, asserting an ineffe ctive-assistance-of-counsel claim. The district court3 analyzed his filing as a § 2255 motion, and on September 14 it dismissed his claim as untimely. On October 7, 2016, Ramirez-Hernandez filed his combined opening brief and application for a certificate of ap pealability in this case. On a ppeal, he argues that his trial counsel was ineffective, violating his Sixth Amendment rights, because counsel failed to inform him of his rights—leading to an in valid guilty plea—and failed to appeal the district court’s judgment. 2 He requests that the court vaca te his sentence and allow him to proceed to a jury trial. DISCUSSION
1. Characterization of Claim Though Ramirez-Hernandez appealed fr om the denial of the motion for reconsideration, the district court ha d not construed the underlying motion as asserting a § 2255 claim. So there is little for us to review. The order didn’t conclude much of anything—it just gave Ra mirez-Hernandez a second chance. But his September filing was a proper § 2255 motion and the district court treated it as such. So we ch aracterize his opening brief in this case as the functional equivalent of a notice of appeal from the September 14 judgment. See Torres v. Oakland Scavenger Co. , 487 U.S. 312, 317 (1988) (“ [A] court may nonetheless find that the litigant has complied with the [appeal requirements] if the litigant’s action is the functional equivalent of what the rule requires.”). And, bolste ring that choice, his

2 In his plea agreement, Ramirez-Herna ndez waived his right to appeal any component of his conviction.4 appellate brief focuses on the same material (ineffective assistan ce of counsel) as his September § 2255 motion.
2. Timeliness 3 After clearing that initial hurdle, Rami rez-Hernandez runs into another. To appeal the district cour t’s order denying relief under § 2255, Ramirez-Hernandez must first obtain a COA. We issue a COA only “if the applicant has made a substantial showing of the de nial of a constitutional right .” 28 U.S.C. § 2253(c)(2). Where, as here, the dist rict court denies a § 225 5 motion on procedural grounds, a petitioner must show that reasonable jurists w ould find it debatable that (1) his petition states a valid claim of the denial of a constitutional right, and (2) the district court’s procedural rulings were incorrect. Slack v. McDaniel , 529 U.S. 473, 484 (2000). So we turn to whether the district court was co rrect that RamirezHernandez’s claim was time-barred. Under 28 U.S.C. § 2255(f), Ramirez-Herna ndez had one year to file his habeas petition. That period runs from the date on which the judgment of conviction becomes final. In April 2008, the district court senten ced Ramirez-Hernandez, and he didn’t appeal the judgment. And Ramirez-Hernandez wait ed until August 2016 to file his § 2255 motion—well after the limitations period.

3 Appellant’s combined opening brief a nd application for a certificate of appealability doesn’t address the § 2255 limitations period and instead lays out an ineffective-assistance-of-counsel claim. Bu t liberally construing the pleadings, we address the dispositive limitations-period issue.5 To overcome this statute- of-limitations bar, Ramirez-Hernandez must show (1) that facts supporting the claim became newly available, or (2) that he is entitled to equitable tolling. Neither applies. Ramirez-Hernandez points to no new evidence that coul dn’t have been discovered through due diligence. In his § 2255 motion, he simply argue s that he was unaware that any forfeiture was a component of his sentencing. But, as the district court noted, that forfeiture was part of his signed plea agreement. 4 Nor does equitable tolling apply. Equitable tolling “ is only available when an inmate diligently pursues his claims and dem onstrates that the failu re to timely file was caused by extraordinary circ umstances beyond his control.” Marsh v. Soares , 223 F.3d 1217, 1220 (10th Ci r. 2000). Ramirez-Hernand ez’s § 2255 motion and his appellate brief identify no exceptional circ umstances—so equitable tolling isn’t available. Ramirez-Hernandez failed to file his motion within the one-year limitations period. Accordingly, no reasonable jurist could de bate the district court’s determination that Ramirez-Hernandez isn’t entitled to eq uitable relief and that his § 2255 motion is therefore subject to dismissal.

4 And, as the district court noted, th e forfeiture has no connection to his ineffective-assistance claims anyway.6 CONCLUSION For the reasons stated, we deny Ra mirez-Hernandez a COA, grant his ifp request, and dismiss the appeal.

Entered for the Court
Gregory A. Phillips Circuit Judge