FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                  October 1, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 07-4082
          v.                                               (D. Utah)
 DAVID A. SAUNDERS,                            (D.C. No. 2:07-CV-27-PG V and
                                                     2:03-CR-942-PGC)
               Defendant-Appellant.




                                      OR DER


Before H E N RY, TYM K O VICH , and HO LM ES, Circuit Judges.


      David Allen Saunders seeks a certificate of appealability (“COA”) to

appeal the district court’s order denying his “Petition for W rit of H abeas Corpus,

Jus Legitium, Jus Quaesitum [28 U.S.C. § 2241].” Rec. doc. 1, at 1. For the

reasons set forth below, we deny M r. Saunders’ application and dismiss this

matter.

                                 I. BACKGROUND

      On M ay 26, 2004, M r. Saunders pleaded guilty to receipt of child

pornography and possession of child pornography, in violation of 18 U.S.C. §

2252A. On November 29, 2004, the district court sentenced M r. Saunders to 60
months’ imprisonment, followed by sixty months’ supervised release. The court

entered the judgment of conviction on December 1, 2004.

       M r. Saunders did not file a direct appeal of his conviction or sentence.

How ever, on January 16, 2007, he filed a “Petition for W rit of H abeas Corpus,

Jus Legitium, Jus Quaesitum [28 U.S.C. § 2241],” in which he alleged that the

district court lacked jurisdiction to enter the judgment of conviction. The district

court characterized M r. Saunders’ petition as a 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence and denied the motion as untimely,

reasoning that, under 28 U.S.C. § 2255(1), M r. Saunders had one year to file the

motion after his sentence became final. M r. Saunders’ conviction “became final

ten days after the time for appeal had run, excluding intermediate Saturdays,

Sundays, or legal holidays.” United States v. Guerrero, 

, 1316 n.2

(10th Cir. 2007); see also F ED . R. A PP . P. 4(b)(1)(A)(i) (stating that a notice of

appeal must be filed within ten days after the entry of judgment); 4(b)(6) (stating

that a judgment is entered when it is entered on the criminal docket); 26(a)(2)

(excluding intermediate Saturdays, Sundays or legal holidays if the period is less

than eleven days). However, M r. Saunders did not file the motion until more than

tw o years later.

                                   II. DISCUSSION

       In order to obtain a COA, M r. Saunders must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). M r. Saunders

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may make this showing by demonstrating 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.” M iller-El v. Cockrell, 

, 336

(2003) (internal quotation marks omitted). “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that [the] petitioner will not prevail.” 

       In determining whether M r. Saunders is entitled to a COA, we must first

consider the district court’s decision to recharacterize M r. Saunders’ motion as

one filed pursuant to 28 U.S.C. § 2255. W e agree with the district court that M r.

Saunders’s “Petition for W rit of Habeas Corpus, Jus Legitium, Jus Quaesitum [28

U.S.C. § 2241],” is properly characterized as a 28 U.S.C. § 2255 motion: M r.

Saunders’ petition challenged the imposition of his conviction and sentence, not

the manner in which his sentence was executed. See Bradshaw v. Story, 

, 166 (10th Cir. 1996) (stating that “[a] petition [filed] under 28 U.S.C. § 2241

attacks the execution of a sentence rather than its validity and must be filed in the

district where the prisoner is confined” while “[a] 28 U.S.C. § 2255 petition

attacks the legality of detention, and must be filed in the district that imposed the

sentence”) (internal citations omitted).




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      Nevertheless, the Supreme Court has held that “a district court may not

recharacterize a pro se litigant’s motion as a request for relief under §

2255-unless the court first warns the pro se litigant about the consequences of the

recharacterization [i.e., that subsequent § 2255 motions will be subject to the

restrictions on second or successive § 2255 motions], thereby giving the litigant

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

motion.” Castro v. United States, 

, 382 (2003); see also United

States v. Kelly, 

, 1242 (10th Cir. 2000) (applying the same rule).

Nevertheless, a failure to so notify the pro se litigant may be harmless. See

United States v. M artin, 

, 1200 (10th Cir. 2004) (concluding that

“[s]ince any § 2255 motion filed by Appellant in the instant case would be time

barred, the district court’s failure to notify Appellant of the recharacterization

was harmless”).

      Here, there is no indication that the district court notified M r. Saunders of

the consequences of recharacterizing his motion. Nevertheless, we conclude that

the failure to notify M r. Saunders was harmless. M r. Saunders’ motion was

untimely and equitable tolling of the limitations period is not warranted.

      In his supplemental brief, M r. Saunders argues that the one-year statute of

limitations is inapplicable because his motion was filed pursuant to 28 U. S.C. §

2241 rather than § 2255. In the alternative, he contends that the limitations




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period violates his First Amendment right to petition the government for a redress

of grievances.

      Neither argument is persuasive. As noted above, we agree with the district

court that M r. Saunders’ motion is properly characterized as filed under § 2255.

The one-year limitations period established by 28 U.S.C. § 2255(1) is therefore

applicable. As to M r. Saunders’ constitutional argument, we note that although

the First Amendment provides a right of access to the courts, see Lewis v. Casey,

(1996), the mere fact that a claim may only be asserted within a

limited period of time does not violate that right. Cf. Fisher v. Gibson

(10th Cir. 2001) (holding that, absent proof that it renders the

habeas remedy “inadequate or ineffective,” the one-year limitation does not

violate the Suspension Clause). M oreover, as the district court concluded, M r.

Saunders has not demonstrated that circumstances beyond his control prevented

him from filing a § 2255 motion within the one-year period. See M iller v. M arr,

, 978 (10th Cir. 1998).




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                             III. CONCLUSION

      Accordingly, we DEN Y M r. Saunders’ application for a CO A and DISM ISS

this matter.




                              Entered for the Court,




                              Elisabeth A. Shumaker
                              Clerk of Court




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