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Filed: Patrick Fisher
Filed: Patrick Fisher
AUG 7 2002
PATRICK FISHER
Clerk
v.
No. 02-6071
(D.C. No. 01-CV-702-L,
99-CR-168-L)
(W.D. Oklahoma)
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
**
argues that his 2255 motion should be considered timely because he requested
an extension of time prior to the expiration of the one-year deadline in 2255.
Aplt. Br. at 16. He also argues that he had an additional 90 days to file a 2255
motion because his conviction did not become final until the time for filing a
certiorari petition passed. Aplt. Br. at 16-f.
Contrary to Mr. Phillipss contention, his conviction became final when the
possibility of direct review endedwhen he failed to take a direct appeal within
ten days of the entry of the judgment and sentence. See United States v. Burch,
202 F.3d 1274, 1278 (10th Cir. 2000) (holding that the one-year limitation period
begins to run when, after direct appeal, the time for filing a certiorari petition
expires). The district court was undoubtedly correct in denying Mr. Phillipss
motion for an extension of time to appeal. United States v. Tarrant, 158 F.3d 946,
947 (6th Cir. 1998). Mr. Phillips requested an extension of time to file an
appeal, not to file a 2255 motion, and that is what the district court acted on.
Even assuming that Mr. Phillips confused a direct appeal with a 2255 motion,
the circumstances recited in his motion for an extension of time to file a direct
appeal are not sufficiently extraordinary so as to warrant equitable tolling. See
Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Because we find Mr.
Phillipss 2255 motion untimely, we decline to address the other issues he seeks
to raise in this appeal.
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