United States of America v. Minners

Filing 920081016


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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS TENTH CIRCUIT October 16, 2008 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. UNRICO RANIER MINNERS, Defendant - Appellant. No. 08-5092 (N.D. Oklahoma) (D.C. Nos. 4:08-CV-00317-JHP-SAJ and 4:05-CR-00152-JHP-2) ORDER DENYING CERTIFICATE OF APPEALABILITY Before BRISCOE, MURPHY, and HARTZ, Circuit Judges. Unrico Minners, a federal prisoner, seeks a certificate of appealability ("COA") so he can appeal the district court's denial of the motion to vacate, set aside, or correct sentence he brought pursuant to 28 U.S.C. 2255. See 28 U.S.C. 2253(c)(1)(B) (providing a movant may not appeal the denial of a 2255 motion unless the movant first obtains a COA). Minners pleaded guilty to four charges stemming from a crime of violence committed in 2005. See United States v. Minners, 211 Fed. App'x 742, at *1 (10th Cir. 2007). Minners's direct appeal was dismissed by this court on January 4, 2007. Id. The instant 2255 motion was filed on May 27, 2008. In the motion, Minners asserted claims that his counsel provided constitutionally ineffective assistance. The district court dismissed Minners's 2255 motion sua sponte, concluding the motion was filed outside the one-year limitation period set forth in 28 U.S.C. 2255. In his appellate brief, Minners argues the merits of the claims he seeks to raise in his 2255 motion. He does not address the district court's procedural ruling and presents no argument that the district court miscalculated the one-year period. To be entitled to a COA, Minners must show "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district court dismisses a habeas petition on procedural grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists would find it debatable whether he had stated a valid constitutional claim and debatable whether the district court's procedural ruling was correct). Our review of the record demonstrates that the district court's dismissal of Minners's 2255 motion as untimely is not deserving of further proceedings or subject to a different resolution on appeal. Accordingly, we deny Minners's request for a COA and dismiss this appeal. ENTERED FOR THE COURT Elisabeth A. Shumaker, Clerk -2-

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