* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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. 

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

### JUL 17 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LAROAN F. VERNERS, Defendant-Appellant. No. 01-5000 (N. District of Oklahoma) (D.C. No. 93-CR-001-C)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Laroan Verners appeals the district court’s denial of his “Motion for Tolling of Time to File § 2255” (the “Motion”). In the Motion, Verners simply1 Because the Motion is not a motion to vacate or correct sentence pursuant

to § 2255, Verners does not need a certificate of appealability to appeal the district court’s denial of the Motion. See 28 U.S.C. § 2253(c)(1)(B); cf. Jones v. United States , No. 00-5280, 2001 WL 92114, at *2 (6th Cir. Jan. 25, 2001) (unpublished disposition) (holding that petitioner did not need to obtain permission to file a second or successive petition after district court denied motion to toll statute of limitations because such a motion to toll did not constitute a § 2255 motion). -2- asserted that he was entitled to equitable tolling because he belatedly received notification his direct appeal had been decided, le aving him with insufficient time to file a 28 U.S.C. § 2255 petition within the time limits set out in § 2255 paragraph six. He did not indicate when he intende d to file a § 2255 motion or what issues such a motion might raise. In denying the Motion, the district court held as follows: “The limitation period for filing [a § 2255] motion is contained within the text of 28 U.S.C. § 2255, as amended. T he Court finds that there is no factual basis for defendant’s motion and accordingl y the motion is DENIED.” Because we conclude that the question of equitable tolling is not ripe until Verners actually files a § 2255 motion, this court vacates the district court’s order and remands the matter to the district court to dismiss the Mo tion. 1 The procedural posture of this case is somewhat unu sual. After a jury trial, Verners was convicted of possession of cocaine base with intent to distribute, maintaining an establishment for manufacturing drug s, aiding and abetting a codefendant in the commission of those crimes, and us e of a firearm during and in-3-

relation to a drug trafficking crime. On direct ap peal, this court affirmed all convictions with the exception of the aiding and ab etting offense and remanded to the district court for resentencing. See United States v. Verners , 53 F.3d 291 (10th Cir. 1995). On remand, the district court re sentenced Verners to the same term of incarceration; this court affirmed Verners’ sentence on appeal. See United States v. Verners , No. 95-5194, 1997 WL 183510 (10th Cir. Apr. 15, 1997) (unpublished disposition). Verners thereafte r brought a motion to vacate, set aside, or correct his conviction and sentence u nder § 2255. In his § 2255 motion, Verners raised several claims of ineffectiv e assistance of counsel and asserted that his § 924(c) firearms conviction mustbe vacated in light of Bailey v. United States , 516 U.S. 137 (1995). The district court denied V erners relief as to the ineffective assistance claims. It granted the motion as to the firearms conviction, however, vacating the § 924(c) convicti on and setting the matter for resentencing. After he was resentenced, Verners ap pealed to this court, raising a single issue relating to the propriety of his recal culated sentence and asserting that the district court had erred in refusing to gr ant relief on his ineffective assistance claims. This court affirmed the distric t court in all respects. See United States v. Verners , No. 98-5044, 1999 WL 332700 (10th Cir. May 26, 19 99) (unpublished disposition) ( Verners III ). Nevertheless, recognizing the unusual procedural posture in which the appeal reached this court, we held as follows:2 For the first time on appeal Verners has set forth the issues that he

anticipates raising in a § 2255 petition. Verners has identified that following four issues: “(A) the government‘s variance and construc tive amendment of the indictment, (B) faulty jury instruction, (C) ineffe ctive assistance of counsel, and (D) the constitutionality of the construction and c ongressional intent of Title 21.” With the possible exception of any claim of ineffec tive assistance related solely to the resentencing proceedings, it is clear that all of these claims would fall outside of the narrow boundaries for the filing of a second§ 2255 petition set out in Verners III

. See 1999 WL 332700, at *2 (“[O]ur consideration of Verners’ current § 2255 claims does not bar consideration of any future § 2255 motion limited solelyto issues related to the resentencing which we are addressing in this direct appeal.”). To the extent that Verners mightseek to raise in a future § 2255 motion any issues but those related solely to his r esentencing proceeding he must first seek permission from this court pursuant to § 2255 paragraph eight to file a second or successive writ. -4-

We also conclude that our consideration of Verners’ current § 2255 claims does not bar consideration of any future § 2255 motion limited solelyto issues related to the resentencing which we are addressing in this direct appeal, since any such is sues would have been unavailable at the time Verners filed his orig inal petition. Id. at *2 n.1 (emphasis in original). On November 2, 2000, approximately seventeen months after this court issued its decision in Verners III, Verners filed the Motion. As set out above, the Motion was particularly conclusory. It simply note d that, through no fault of his own, Verners had not received notice of the decisio n in Verners III until October 20, 2000. He thus requested that the one-year statute of limitations set out in § 2255 paragraph six be equitably tolled so that it w ould begin to run on that date, rather than on the date Verners III was decided. Verners did not identify any of the grounds that he might raise in a potential § 22 55 motion, 2should one actually-5-

be forthcoming, and specifically noted that the Mot ion was not a § 2255 motion. The district court denied the Motion, concluding th at it lacked a “factual basis.” It is well established in this Circuit that AEDPA’s one-year limitations period is not jurisdictional but is, instead, subje ct to equitable tolling. See Moore v. Gibson , 250 F.3d 1295, 1299 (10th Cir. 2001). “Equitable tolling is only available when an inmate diligently pursues his cla ims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.” Id. (quotation omitted). Verners has not identified, however, a single case resolving the question of equitable tolling inadvance of the actual filing of a § 2255 motion. In fact, until a § 2255 motion is a ctually filed and the affirmative defense of the statute of limitations actually rais ed, the propriety of equitable tolling is purely an abstract concern. “Under Arti cle III of the Constitution, federal courts have subject matter jurisdiction onl y over ‘cases and controversies.’” United States v. Wilson , 244 F.3d 1208, 1213 (10th Cir. 2001). One aspect of the case-or-controversy requirement i s the ripeness doctrine, which is “intended to prevent the courts, through avoidan ce of premature adjudication, from entangling themselves in abstract disagreement s.” Id. Article III’s ripeness requirement “forestall[s] judicial determinations o f disputes until the controversy is presented in clean-cut and concrete form.” Id. This court considers two issues to determine whether a claim is ripe for adjudicati on: (1) the fitness of the issue-6-

for judicial resolution and (2) the hardship to the parties of withholding judicial consideration. See id. We conclude that the question of equitable tolling is ripe for adjudication only when a § 2255 motion has actually been filed a nd the statute of limitations has been raised by the respondent or the court sua sponte . It is only at this point that the record will be sufficient to determine whe ther the requisite “extraordinary circumstances” are present to the magnitude necessary to merit equitable tolling. Furthermore, this court can discern no hardship to Verners in withholding judicial consideration of the question of equitable tolling until a § 2255 motion is actually filed and limitations period raised. Accordingly, we conclude that question of equitable tolling is not ripe and that the Motion i s, therefore, not justiciable. The case is thus REMANDED to the district court to VACATE its order denying the Motion and to DISMISS the motion for lack of jurisdiction.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge