* The case is unanimously ordered submitted without oral argument pursuant

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G ). This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### JAN 15 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LONNIE C. PENNINGTON, Defendant - Appellant, v. UNITED STATES OF AMERICA, Plaintiff - Appellee. No. 98-3197 (D.C. No. 98-3034-MLB) (District of Kansas)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.

Lonnie C. Pennington appeals the denial of his moti on filed under 28 U.S.C. § 2255, seeking to enforce the alleged terms of an oral plea agreement. The district court ruled that such motion was untim ely and that it should be rejected on the merits without benefit of an eviden tiary hearing. Because he is proceeding pro se, we construe Pennington’s motion liberally. As best we can ascertain, his motion alleges two separate breaches of his plea agreement: first,- 2 -

that the government violated a promise to move unde r U.S.S.G. § 5K1.1 for a downward departure at sentencing; and second, that the government violated a promise to move for a post-sentencing departure und er Fed. R. Crim. P. 35(b). We grant Pennington’s request for a certificate of appealability, and affirm. Pennington’s first claim is untimely. Motions unde r 28 U.S.C. § 2255 must be filed within one year of the final judgment of c onviction unless certain statutory exceptions apply to toll the limitations period. With regard to petitioner’s § 5K1.1 claim, no such exceptions appl y because Pennington had notice of the government’s failure to follow its al leged promise at sentencing, and therefore before the final judgment against him was filed. The second claim, however, is timely because Pennington was not on no tice of the government’s failure to file a Rule 35(b) motion until one year after the imposition of his sentence, which is the period within which Rule 35 motions are normally filed. See Fed. R. Crim. P. 35(b); see also 28 U.S.C. § 2255(4) (tolling limitations period until “the date on which the facts supportin g the claim . . . presented could have been discovered through the exercise of due di ligence”). The district court did not err, however in refusin g to grant an evidentiary hearing on this second claim. We conduct a two-ste p inquiry in reviewing the district court’s refusal, determining first whetherthe petitioner’s allegations, if true, would entitle him to relief, and then, if the y would, whether the district court- 3 -

abused its discretion in summarily denying an evidentiary hearing. See United States v. Barboa , 777 F.2d 1420, 1422 (10th Cir. 1985). Even if Pe nnington’s allegations are true, the plea agreement contains n o promise by the government to move for a sentence reduction under Rule 35(b). Pa ragraph 6 of the plea agreement, which Pennington confirmed before the district court , plainly supports that claim. See I R., doc. 604, Ex. 2, at 7 (“[T]his Plea Agreemen t is the only agreement between the United States and defendant, Lonnie C. Pennington, concerning his plea of guilty . . . and . . . there are no other deals, bargains, agreements, or understandings which modify or alterthis agreement.”). “In considering whether the plea agreement was violated , we construe the terms of the plea agreement according to what [defendant] re asonably understood when he entered the plea.” United States v. Svacina , 137 F.3d 1179, 1185 (10th Cir. 1998) (quotation omitted). The district court did not ab use its discretion in denying Pennington an evidentiary hearing. See United States v. Gines , 964 F.2d 972, 979 (10th Cir. 1992). AFFIRMED . The mandate shall issue forthwith. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge