* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by design ation. 

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

### AUG 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JOHNNY E. GLOVER,

Defendant-Appellant. No. 97-5158 (D.C. No. 97-CV-515-C) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA and McKAY , Circuit Judges, and BROWN, ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Defendant pleaded guilty to two counts of a five-co unt indictment on

September 18, 1991; he was sentenced on December 10 , 1991; and he did not appeal his conviction or sentence. In light of the one-year limitation period for filing a § 2255 motion contained in the Antiterrori sm Effective Death Penalty Act, see 28 U.S.C. § 2255, this court held in Simmonds that “prisoners whose convictions became final on or before April 24, 199 6 must file their § 2255 motions before April 24, 1997.” 111 F.3d at 746. -2- this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Defendant appeals from the district court’s denial of his motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255. The district court denied the motion as time-barred because defe ndant did not file it within the grace period set forth in United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). 1 In response to the district court’s denial of his m otion as time-barred, defendant argues on appeal that he did not file his § 2255 motion in a timely manner because the government created an impedimentto his filing the motion in violation of the Constitution. We have held that the one-year limitation period added to the post-conviction statutes by AEDPA is, indeed, a statute of limitations and, as such, is not jurisdictional. Cf. Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998) (involving a habeas petition under § 225 4, which has virtually the same time limitation amendment, and holding that limitat ion is not jurisdictional and may be subject to equitable tolling). The statute s pecifically provides that the2 The district court is, of course, free to consider any other equitable tolling

issues it deems appropriate. -3- limitation period shall run from “the date on whichthe impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was pre vented from making a motion by such governmental action.” 28 U.S.C. § 2255(2). The one-year limitation “begins to run in accordance with individual circum stances that could reasonably affect the availability of the remedy, . . . but re quires inmates to diligently pursue claims.” Miller , 141 F.3d at 978 (citing habeas equivalent of 28 U .S.C. § 2255(2) and Calderon v. United States District Court , 128 F.3d 1283, 1289 (9th Cir. 1997), cert. denied , 118 S. Ct. 899 (1998)). Given a liberal construction, see United States v. Edwards , 69 F.3d 419, 427 n.5 (10th Cir. 1995) (construing pro se brief liberally), defendant has alleged such cir cumstances in his pro se appeal. Consequently, we must remand this case to the distr ict court for findings regarding whether there was an impediment created b y governmental action in violation of the Constitution or laws of the UnitedStates, and if it prevented defendant from filing his motion in time. 2 We grant defendant a certificate of appealability. We VACATE the district court’s denial of defendant’s § 2255 motion as time -barred, and we REMAND to the district court for further proceedings consiste nt with this order and judgment.-4-

See Miller v. New Jersey State Dep’t of Corrections , No. 97-5611, 1998 WL 270110, at *3 (3d Cir. May 26, 1998) (granting cert ificate of appealability, vacating district court dismissal, and remanding fo r consideration of equitable tolling issues).

Entered for the Court

Deanell Reece Tacha Circuit Judge