Carlos Saro seeks relief from the district court's denial of his motion for leave to file a motion to vacate his sentence. Although the procedural complexities of this case require some discussion, we conclude that the district court was plainly correct in ruling that Saro's motion was time-barred. We therefore cannot grant Saro's request for relief.

* In May 1991, Saro was convicted in the United States District Court for the District of Columbia on five counts of distribution of and conspiracy to distribute cocaine base, and was sentenced to life imprisonment. In 1994, we denied his appeal and affirmed his convictions and sentence. United States v. Saro, 24 F.3d 283 (D.C. Cir. 1994). Saro did not seek certiorari from the Supreme Court.

Pursuant to 28 U.S.C. 2255, a federal prisoner may move the sentencing court to vacate, set aside or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Effective April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) amended 2255 to impose a "1-year period of limitation" on motions brought under that section. Pub. L. No. 104-132, 105, 110 Stat. 1214, 1220 (1996). In United States v. Cicero, we held that prisoners like Saro, whose convictions became final before AEDPA's effective date, had a one-year grace period from that date in which to file a 2255 motion--yielding a filing deadline of April 24, 1997. See 214 F.3d 199, 202 (D.C. Cir. 2000).

On August 27, 1997--four months after that deadline--Saro mailed a pro se pleading to the district court entitled "Motion for Leave to File a Title 28 U.S.C. 2255." He did not attach a substantive 2255 motion to this pleading, nor did he give any indication of the nature of his underlying claims. Instead, Saro sought an extension of time in which to file a 2255 motion, based on the defalcation of his attorney. Saro stated that in late 1996 or early 1997, he contacted attorney Patrick L. Brown about filing a motion on his behalf. According to Saro's pleadings and attached correspondence, Brown told him that the deadline for filing the motion was April 24, 1997, and that Brown would not start working on the motion until Saro paid him a retainer. Brown wrote Saro on March 24, 1997, saying that he had not yet received the agreed-upon fee and advising Saro to send it quickly in light of the impending deadline. Saro mailed Brown a payment on March 28, 1997. Saro never heard from Brown again, and by May 30, 1997, Saro confirmed through correspondence with the clerk of the district court that Brown had not filed the 2255 motion. On July 31, 1997, Saro filed a complaint with the Disciplinary Counsel of the Supreme Court of Ohio, the bar of which Brown was a member. See Mot. for Leave to File at 1-2, Ex. 2.1

On April 30, 1998, the district court denied Saro's motion for leave to file on the ground that it was "time-barred because it was filed significantly more than a year after the enactment of the AEDPA." United States v. Saro, No. 90-cr-449, slip op. at 2 (D.D.C. Apr. 30, 1998) ("April 1998 Order"). In response to Saro's argument that the limitations period should be tolled because of his lawyer's malfeasance, the court concluded that there were "no 'extraordinary circumstances' ... which would justify equitable tolling." Id. The court explained that although Saro had learned of Brown's failure to file by May 30, 1997, he did not submit his motion for leave to file until three months later. Moreover, Saro offered "no explanation for this three-month delay." Id.

Saro responded to the court's order with a series of motions seeking reconsideration, all of which the court denied. Saro subsequently asked the district court to issue a Certificate of Appealability (COA), required by 28 U.S.C. 2253(c) to appeal "the final order in a proceeding under section 2255." The district court denied this request as well. Saro filed notices of appeal from one of the district court's denials of reconsideration and from its denial of a COA.2 We consolidated the notices of appeal and appointed the Federal Public Defender as amicus curiae to present arguments on Saro's behalf.3

As amended by AEDPA in 1996, 28 U.S.C. 2253 states: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a proceeding under section 2255." 28 U.S.C. 2253(c)(1); see Pub. L. No. 104-132, 102, 110 Stat. 1214, 1217 (1996). When a COA is required, we treat a notice of appeal as an application for a COA. See United States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir. 2000); see also Fed. R. App. P. 22(b); Slack v. McDaniel, 529 U.S. 473, 483 (2000). Although Saro applied for a COA in the district court, he now contends that no COA is required to hear his appeal because the district court's April 1998 decision was not "the final order in a proceeding under section 2255," but rather was merely the denial of leave to file a 2255 motion. The United States contends that a COA is required because that decision was in fact the final order in a 2255 proceeding.

If a COA is required, it is a prerequisite to our consideration of Saro's appeal. See 28 U.S.C. 2253(c); Slack, 529 U.S. at 485. Thus, we may not simply assume that a COA is not required and proceed to the merits of Saro's claim. Cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998) (holding that federal courts must determine that they have jurisdiction before turning to the merits of a case). We may, however, assume that a COA is required, and then proceed to consider whether Saro can satisfy the requirements for issuance of a COA. Cf. Slack, 529 U.S. at 485 (holding that "[e]ach component of the 2253(c) showing is part of a threshold inquiry"); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999) (holding that jurisdictional questions may be resolved in any order). Whether such an approach is fair to Saro if in fact no COA is required for his appeal is, of course, another question--which we address in Part III below.

Under 2253, a COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). In Slack v. McDaniel, the Supreme Court held that when a "district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue ... if the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." 529 U.S. at 478. The Slack test applies to Saro's case, because the district court denied Saro's motion solely on the procedural ground that it was barred by the statutory deadline.

The government contends that Saro cannot meet the first requirement of the Slack test--a debatable claim of the denial of a constitutional right--because Saro has never described the nature of his underlying constitutional claim. In response, Saro contends that the requirement of a debatable constitutional claim cannot be applied literally in a case like his, where the underlying 2255 motion was never filed because the district court denied leave to file. We need not resolve this dispute regarding Slack's first requirement, however, because it is quite clear that Saro cannot meet Slack's second requirement: that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.4

The government asks us to hold that reasonable jurists would not dispute the correctness of the district court's ruling that Saro's motion was time-barred, both because equitable tolling never applies to proceedings under 2255, and because even if the doctrine does apply, malfeasance by a prisoner's attorney does not constitute the "extraordinary circumstances" necessary to bring the doctrine into play. See Cicero, 214 F.3d at 203 (holding that if equitable tolling applies to 2255, tolling is warranted only "if extrordinary circumstances beyond a prisoner's control" prevented him from filing by the statutory deadline).5 We need not reach either such conclusion to resolve this case. Even if 2255's period of limitations is subject to equitable tolling, and even if the malfeasance of Saro's lawyer qualifies for tolling, the amount of time tolled would not excuse Saro's three-month delay after he learned of his lawyer's failure to file.

The Supreme Court has explained that "[p]rinciples of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped." United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991). Saro's pleadings indicate that he did not engage Brown to file the 2255 motion until, at the earliest, March 28, 1997--the date he sent the payment that Brown told him was necessary for work to begin. Accordingly, even if Brown's defalcation is the kind of "extraordinary circumstance" that warrants tolling, the earliest date upon which tolling could begin was March 28--at which point Saro had approximately one month remaining before the April 24, 1997 filing deadline. Saro's pleadings also make clear that he knew Brown had failed to file the 2255 motion no later than May 30, 1997, when Saro received confirmation from the district court clerk that no filing had been made. Thus, May 30 was the latest date upon which the time bar would begin to run again, at which point principles of equitable tolling would leave Saro with another month--until the end of June--to make his 2255 filing with the district court.6 Saro, however, did not file within a month of learning of his lawyer's malfeasance. Instead, he waited three months--until the end of August 1997--missing even an equitably extended deadline by two months.

Saro contends that this should not be the end of our inquiry, and that we should extend the limitations period through the date of his August filing, or at least remand for a hearing into the circumstances of this additional delay. Had Saro offered an explanation for the additional delay, he might have an argument in this regard. But it is Saro's burden to establish that equitable tolling is warranted,7 and he has offered no explanation for his failure to file even a request for an extension of time during the three months from May through August: not in his multiple pleadings in the district court, and not in any subsequent pleading on appeal.8 As noted above, this circuit held in Cicero that if equitable tolling applies at all under 2255, it applies only in "extraordinary circumstances." 214 F.3d at 203. Moreover, the Cicero court rejected as insufficiently extraordinary the fact that a prisoner's preparations for filing during the final months of the AEDPA grace period were interrupted when he was stabbed and hospitalized, and when his legal papers became unavailable because he was transferred to a different prison. Id. at 201. It must follow that when a prisoner proffers no reason whatsoever for his failure to file by an already-extended deadline, additional equitable tolling is plainly unwarranted and the district court need conduct no further factfinding on the subject. See generally id. at 204 (declining to remand to the district court for additional factfinding).

In sum, we conclude that the district court was plainly correct in holding that there were "no 'extraordinary circumstances' ... which would justify equitable tolling" sufficient to render Saro's filing timely in this case. April 1998 Order at 2.9 Moreover, this result is so clear, particularly in light of the absence of any explanation for Saro's failure to file for three months after learning of his lawyer's failure to file, that "jurists of reason" would not "find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 478. Accordingly, Saro is ineligible for a COA. See id.

To this point, our analysis has proceeded upon the assumption that Saro requires a COA in order to appeal the district court's denial of his motion for leave to file a 2255 motion. Saro objects that such an assumption is unfair to him, arguing that a COA is only required to appeal from the denial of a 2255 motion, and not from the denial of a motion to file such a motion. Saro's objection to our analytical approach would rest on firm ground, and hence require a resolution of whether a COA is actually required in this case, if the standard for reviewing a COA application were less favorable to him than the standard for reviewing an appeal.10 But the COA standard is not less favorable, and Saro's objection is therefore misplaced.

Our conclusion that Saro does not qualify for a COA turned on the correctness of the district court's ruling that Saro's out-of-time filing could not be saved by the doctrine of equitable tolling. But just as that procedural ruling was the central issue in our COA analysis, so too would it be were the case analyzed as an appeal. Moreover, the standard for reviewing the correctness of that ruling on an application for a COA is more favorable to Saro than is the standard for reviewing the merits of an appeal. To qualify for a COA: "[T]he petitioner need not show that he should prevail on the merits.... Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Mitchell, 216 F.3d at 1130 (alterations and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). As we have held in Part II, Saro cannot meet even this liberal standard. Accordingly, he necessarily would fail on the merits were we to treat his notice as an appeal rather than as an application for a COA.

For the foregoing reasons, Saro's appeal, treated as an application for a COA, is

Dismissed.