F I L E D

United States Court of Appeals

Tenth Circuit

April 17, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-1425

v. (D.C. No. 94-CR-327 LTB)

STEPHEN FUTRELL, (D. Colo.)

Defendant-Appellant.

 

ORDER

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Appellant, a federal prisoner appearing pro se, pleaded guilty to one count

of distribution of more than fifty grams of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), and was sentenced to a term of 256 months’ imprisonment on

July 25, 1995. Appellant filed a direct appeal, contending that he was not a

career offender. United States v. Futrell, No. 95-1320,1996 WL 200602, at *1-*2

(10th Cir. Apr. 25, 1996). We rejected Appellant’s argument. Id. 

Nearly nine years later, Appellant filed a motion contesting the validity of

his sentence, arguing that the Government’s failure to file an information

pursuant to 21 U.S.C. § 851(a)(1) rendered his conviction void. The district court

construed Appellant’s motion as one for relief under 28 U.S.C. § 2255. Order, 1
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(D. Colo. Feb.16, 2005). The district court explained:

[A] “district court may not recharacterize a pro se litigant’s motion as a

request for relief under § 2255–unless the [c]ourt first warns the pro se

litigant about the consequences of the recharacterization, thereby giving the

litigant an opportunity to contest the recharacterization, or to withdraw or

amend the motion.”

Id. at 2 (quoting Castro v. United States, 540 U.S. 375, 381 (2003)). 

Consequently, the district court reminded Appellant that he would have twenty

days from the date of the order to contest the recharacterization of his motion

under § 2255. Appellant did file a timely response to the court’s motion on

February 23, 2005, but did not contest the district court’s classification of his

motion under § 2255. 

On July 19, 2005, the district court issued an order denying Appellant’s

motion because under the Anti-Terrorism and Effective Death Penalty Act, 28

U.S.C. § 2255, Appellant must bring an appeal within one year of the date that his

conviction became final. See Order, 1 (D. Colo.). Appellant’s conviction

became final ninety days after our April 25, 1996, Order and Judgment. 

Appellant filed this motion on January 12, 2005, outside the time limitations

imposed by AEDPA. Therefore, the district court held that Appellant’s motion

was “barred by the provisions of that Act.” Id. 

Since we agree with the district court’s construal of Appellant’s motion as

coming under § 2255, we review for whether to grant him a certificate of
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appealability. The issues he raises on appeal are identical to those brought before

the district court.

To grant a certificate of appealability, Appellant must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994). 

In order to meet this burden, Appellant must demonstrate “that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotation omitted).

We have carefully reviewed the briefs of Appellant and Appellee, the

district court’s disposition, and the record on appeal. Nothing in the facts, the

record on appeal, or Appellant’s filing raises an issue which meets our standard

for the grant of a certificate of appealability. For substantially the same reasons

set forth by the district court in its orders of February 16, 2005, and July 19,

2005, we cannot say “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner.” 

Id. 

We DENY Appellant a certificate of appealability and DISMISS the

appeal. 

Entered for the Court
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Monroe G. McKay

Circuit Judge