* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### MAY 19 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. LEONARDO BANUELOS-MUNOZ, Defendant - Appellant. No. 98-3308 (D.C. No. 98-CV-3318-RDR)

(D.Kan.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Mr. Banuelos-Munoz, an inmate appearing pro se, see ks a certificate of appealability to appeal the district court’s dismis sal of his motion to vacate, set aside, or correct an illegal sentence pursuant to 2 8 U.S.C. § 2255. We deny a certificate of appealability and dismiss the appeal

.- 2 - Background Mr. Banuelos-Munoz pled guilty to a federal count o f conspiracy to possess with intent to distribute marijuana and was sentenc ed to a ninety-seven-month term of imprisonment. The judgment of conviction a nd sentence was filed on November 2, 1994, and Mr. Banuelos-Munoz did not ap peal. On September 28, 1998, Mr. Banuelos-Munoz filed a petition for relie f from his conviction under the All Writs Act, 28 U.S.C. § 1651, or Fed. R. Civ . P. 60(b)(4). In support of his petition, he made numerous claims of ineffective as sistance of counsel, including the failure to file a direct appeal. The district court held that § 2255 provides the exclusive remedy for testing the validity of a conv iction and sentence, and that the one-year limitations period for filing a § 2255 motion had expired on April 24, 1997. The court then dismissed Mr. Banuelos-Mu noz’ petition as untimely. Mr. Banuelos-Munoz filed an objection to the distri ct court’s final order,

see Fed. R. Civ. P. 59(e), claiming that he complied w ith the one-year period of limitations according to § 2255(2) & (4). He alleg es that, beginning in 1995, he wrote numerous letters without reply to both his attorney and the district court requesting a transcript or information related to t he proper fee for a transcript. He argues that the “impediment” to his filing a § 2 255 motion was removed on January 15, 1998, when the district court judge res ponded to one of his letters. The district court denied Mr. Banuelos-Munoz’ objec tions, finding that the lack- 3 -

of a transcript did not prevent Mr. Banuelos-Munoz from filing a timely § 2255 motion and that the government did not act improper ly in failing to provide him with a transcript.

Discussion Section 2255 provides that a one-year limitations p eriod to file a motion shall run from the latest of four enumerated dates:

(1) the date on which the judgment of conviction be comes final; (2) the date on which the impediment to making a mo tion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movantwas prevented from making a motion by such governmental action; (3) the date on which the right asserted was initia lly recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactiv ely applicable to cases on collateral review; or (4) the date on which the facts supporting the clai m or claims presented could have been discovered through the ex ercise of due diligence. Mr. Banuelos-Munoz argues that the failure of his attorney and the district court to provide information about obtaining transcripts constitutes governmental action in violation of 28 U.S.C. § 753(f), which authorize s a court reporter to charge and collect fees for transcripts requested by parties. Mr. Banuelos-Munoz denies that he requested a free transcript under § 753(f), and asserts that he simply wanted to know the amount of the estimated fee so that he cou ld prepay.- 4 -

Although Mr. Banuelos-Munoz faced obstacles in atte mpting to obtain a transcript, we are unable to say that governmental action (or inaction) prevented him from filing a § 2255 motion, or that the facts supporting his claims were dependent on the transcript. As the district courtfound, a transcript was not necessary for him to claim that his counsel failed to file an appeal upon his request; that his guilty plea was involuntary or ma de without knowledge of the consequences; or that the government violated the p lea agreement. In addition, although we recognize that extraordinary circumstances may provide a basis for equitable tolling of the limitations period, see Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998), any delay in re ceiving transcripts in this case does not constitute an extraordinary circumstance g iven the nature of the claims. We conclude that Mr. Banuelos-Munoz’ motion is time -barred, and that, because he has failed to make a substantial showing of the denial of a constitutional right as required under 28 U.S.C. § 2253(c)(2), we DENY acertificate of appealability and DISMISS the appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge