United States of America, Plaintiff-appellee, v. John Martin Noble, Defendant-appellant, 156 F.3d 1245 (10th Cir. 1998)

On January 24, 1996, pursuant to a plea agreement, the defendant in this case pleaded guilty to one count of being a felon in possession of a firearm and one count of possession of a controlled substance (methamphetamine) with intent to distribute. (See R., Doc. # 15.) On March 25, 1996, the district court imposed a sentence of 135 months in prison. (See R., Doc. # 21.) The defendant failed to file a notice of appeal within the ten days allotted by Fed. R. App. P. 4(b), and as a consequence, the judgment of his conviction became final on April 4, 1996. On July 23, 1997, the defendant filed a motion under 28 U.S.C. § 2255 claiming that his Sixth Amendment right to effective assistance of counsel was violated by his lawyer's failure to raise an ex post facto challenge to his sentence. (See R., Doc. # 28.) The district court denied this motion as untimely, denied the defendant's subsequent request for a certificate of appealability, and denied his request to proceed on appeal in forma pauperis. (See R., Doc. # 34, 38, & 40.)

In United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997), this court held that a defendant whose conviction became final before the effective date of the Antiterrorism and Effective Death Penalty Act, i.e., before April 24, 1996, had until April 23, 1997, to file a motion under 28 U.S.C. § 2255. The defendant's conviction became final on April 3, 1996, and as a result, he had until April 23, 1997, to file his § 2255 motion. See Simmonds, 111 F.3d at 746. The defendant failed to meet this deadline, and as a result, we can see no justification for granting the requested certificate of appealability under 28 U.S.C. § 2253.

Additionally, in light of the fact that the appellant has paid his appellate filing fee, his motion to proceed in forma pauperis is moot.

For the foregoing reasons, we DENY the appellant's motion to proceed in forma pauperis; we DENY the appellant's petition for a certificate of appealability, and we DISMISS this appeal.

The mandate shall issue forthwith.