UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

v.

BARRY DEAN BISCHOF,

Defendant–Appellant.

No. 09-6247

(D.C. No.) 5:09-CV-00613-D and 

5:07-CR-001545-D-1

(W.D. Okla.)

ORDER AND JUDGMENT*

Before KELLY, McKAY, and LUCERO, Circuit Judges. 

 

Barry Dean Bischof, a federal prisoner proceeding pro se, appeals the district 

court’s dismissal of his 28 U.S.C. § 2255 habeas petition as untimely. Exercising 

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we affirm. 

 Between 2003 and 2005, Bischof and other prisoners at a federal correctional 

institution in Reno sent threatening letters to federal officials, including the institution’s 

 

* 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 of 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. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 3, 2010

Elisabeth A. Shumaker 

Clerk of Court

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warden. The prisoners claimed they had obtained property interests in their names and 

demanded exorbitant sums as damages for copyright and trademark infringement. With 

the help of individuals outside of the prison, Bischof and others attempted to file liens on 

the real and personal property of the officials and to use those liens to negotiate their 

release. After the FBI learned of the scheme, a grand jury indicted Bischof for 

conspiracy to impede federal officials in violation of 18 U.S.C. § 372 and mailing 

threatening communications with intent to extort in violation of 18 U.S.C. § 876(d). He 

was convicted by a jury, and sentenced to 168 months’ imprisonment. Bischof’s 

judgment and sentence were entered on March 31, 2008. 

Although Bischof attempted to directly appeal his criminal conviction, he did not 

file a notice of appeal until September 10, 2008. We dismissed the appeal as untimely, 

noting that Bischof could argue in a § 2255 petition that his attorney improperly failed to 

file a timely appeal. 

On June 8, 2009, Bischof filed a petition in federal district court to vacate his 

conviction and sentence pursuant to § 2255. Bischof asserted that he is innocent because 

he possesses a valid copyright for his name that he lawfully sought to enforce. He also 

contended that his trial counsel was ineffective for failing to file a direct appeal, and that 

the trial court violated Fed. R. Crim. P. 32(c)(5) by failing to properly inform him of his 

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right to appeal.1 Determining that Bischof’s § 2255 limitations period began on the day 

after his judgment of conviction became final, see § 2255(f)(1), the district court 

concluded the petition was untimely. It dismissed the petition and denied Bischof a 

certificate of appealability (“COA”). 

Bischof then commenced this appeal.2

 In his application for a COA, Bischof 

asserted that he had asked his counsel to file an appeal on his behalf, and that counsel 

failed to do so. Bischof argued that he was unable to learn of his attorney’s failure in a 

timely manner because counsel did not have a secretary and the prison phone system 

made it impossible for him to leave a message on the attorney’s answering machine. 

Further, he stated that repeated transfers and placement in a segregated housing unit made 

communication impossible.

Construing Bischof’s filings to assert that the limitations period should have begun 

to run only when he could have discovered his attorney’s failure to file a direct appeal 

through the exercise of due diligence, see § 2255(f)(4), we granted a COA. The 

government then filed a response and supplemented the record on appeal. Under the 

 1

 Bischof also asserted claims for declaratory judgment related to his asserted 

copyright. However, § 2255 only allows us to consider whether a federal prisoner should 

be released from custody; it does not authorize federal courts to hear civil claims against 

purported copyright infringers. See § 2255(a). 

2

 Although Bischof did not file a notice of appeal, the district court properly 

treated his second request for a COA from the order dismissing his § 2255 petition as the 

functional equivalent of a notice of appeal. See Rodgers v. Wyo. Attorney Gen., 205 

F.3d 1201, 1205 (10th Cir. 2000), overruled on other grounds by Slack v. McDaniel, 529 

U.S. 473 (2000). 

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terms of the COA, we may only consider: (1) whether the district court erred in 

determining that Bischof’s § 2255 limitations period ran from the date on which his 

judgment of conviction became final, pursuant to § 2255(f)(1); and (2) if § 2255(f)(4) 

applies, whether Bischof’s petition was timely. 

After reviewing the supplemental record, we conclude that the district court did 

not err in determining that Bischof’s limitations period began to run pursuant to 

§ 2255(f)(1). In his district court pleadings, Bischof represented that he never asked his 

attorney to file a direct appeal on his behalf; consequently, he is now estopped from 

asserting that he did ask his attorney to appeal. See Kaiser v. Bowlen, 455 F.3d 1197, 

1203-04 (10th Cir. 2006). Furthermore, Bischof refused to meet with trial counsel 

before sentencing and asserted that he did not wish trial counsel to represent him. Under 

such circumstances, Bischof should have known trial counsel would not file an appeal. 

Thus, even assuming that counsel had a duty to consult with Bischof about filing an 

appeal, “the date on which the facts supporting [Bischof’s] claims . . . could have been 

discovered through the exercise of due diligence,” § 2255(f)(4), was in fact before “the 

date on which [Bischof’s] judgment of conviction [became] final,” § 2255(f)(1). Because 

the limitations period runs from the later of these two events, see § 2255(f), the district 

court did not err in determining that Bischof’s limitations period began to run when his 

conviction became final. 

Accordingly, the district court correctly determined that Bischof’s § 2255(f)(1) 

limitations period expired on April 15, 2009, almost two months before Bischof filed his 

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petition. Bischof’s petition was therefore untimely, and we AFFIRM the district court’s 

dismissal. 

 Entered for the Court, 

 Carlos F. Lucero 

 Circuit Judge 

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