                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 17 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 01-5000
v.                                               (N. District of Oklahoma)
                                                  (D.C. No. 93-CR-001-C)
LAROAN F. VERNERS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Laroan Verners appeals the district court’s denial of his “Motion for

Tolling of Time to File § 2255” (the “Motion”). In the Motion, Verners simply


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
asserted that he was entitled to equitable tolling because he belatedly received

notification his direct appeal had been decided, leaving him with insufficient time

to file a 28 U.S.C. § 2255 petition within the time limits set out in § 2255

paragraph six. He did not indicate when he intended to file a § 2255 motion or

what issues such a motion might raise. In denying the Motion, the district court

held as follows: “The limitation period for filing [a § 2255] motion is contained

within the text of 28 U.S.C. § 2255, as amended. The Court finds that there is no

factual basis for defendant’s motion and accordingly the motion is DENIED.”

Because we conclude that the question of equitable tolling is not ripe until

Verners actually files a § 2255 motion, this court vacates the district court’s

order and remands the matter to the district court to dismiss the Motion. 1

      The procedural posture of this case is somewhat unusual. After a jury trial,

Verners was convicted of possession of cocaine base with intent to distribute,

maintaining an establishment for manufacturing drugs, aiding and abetting a co-

defendant in the commission of those crimes, and use of a firearm during and in



      1
        Because the Motion is not a motion to vacate or correct sentence pursuant
to § 2255, Verners does not need a certificate of appealability to appeal the
district court’s denial of the Motion. See 28 U.S.C. § 2253(c)(1)(B); cf. Jones v.
United States, No. 00-5280, 2001 WL 92114, at *2 (6th Cir. Jan. 25, 2001)
(unpublished disposition) (holding that petitioner did not need to obtain
permission to file a second or successive petition after district court denied
motion to toll statute of limitations because such a motion to toll did not
constitute a § 2255 motion).

                                         -2-
relation to a drug trafficking crime. On direct appeal, this court affirmed all

convictions with the exception of the aiding and abetting offense and remanded to

the district court for resentencing. See United States v. Verners, 53 F.3d 291

(10th Cir. 1995). On remand, the district court resentenced Verners to the same

term of incarceration; this court affirmed Verners’ sentence on appeal. See

United States v. Verners, No. 95-5194, 1997 WL 183510 (10th Cir. Apr. 15,

1997) (unpublished disposition). Verners thereafter brought a motion to vacate,

set aside, or correct his conviction and sentence under § 2255. In his § 2255

motion, Verners raised several claims of ineffective assistance of counsel and

asserted that his § 924(c) firearms conviction must be vacated in light of Bailey v.

United States, 516 U.S. 137 (1995). The district court denied Verners relief as to

the ineffective assistance claims. It granted the motion as to the firearms

conviction, however, vacating the § 924(c) conviction and setting the matter for

resentencing. After he was resentenced, Verners appealed to this court, raising a

single issue relating to the propriety of his recalculated sentence and asserting

that the district court had erred in refusing to grant relief on his ineffective

assistance claims. This court affirmed the district court in all respects. See

United States v. Verners, No. 98-5044, 1999 WL 332700 (10th Cir. May 26, 1999)

(unpublished disposition) (Verners III). Nevertheless, recognizing the unusual

procedural posture in which the appeal reached this court, we held as follows:


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             We also conclude that our consideration of Verners’ current
      § 2255 claims does not bar consideration of any future § 2255 motion
      limited solely to issues related to the resentencing which we are
      addressing in this direct appeal, since any such issues would have
      been unavailable at the time Verners filed his original petition.

Id. at *2 n.1 (emphasis in original).

      On November 2, 2000, approximately seventeen months after this court

issued its decision in Verners III, Verners filed the Motion. As set out above, the

Motion was particularly conclusory. It simply noted that, through no fault of his

own, Verners had not received notice of the decision in Verners III until October

20, 2000. He thus requested that the one-year statute of limitations set out in §

2255 paragraph six be equitably tolled so that it would begin to run on that date,

rather than on the date Verners III was decided. Verners did not identify any of

the grounds that he might raise in a potential § 2255 motion, 2 should one actually


      2
        For the first time on appeal Verners has set forth the issues that he
anticipates raising in a § 2255 petition. Verners has identified that following four
issues: “(A) the government‘s variance and constructive amendment of the
indictment, (B) faulty jury instruction, (C) ineffective assistance of counsel, and
(D) the constitutionality of the construction and congressional intent of Title 21.”
With the possible exception of any claim of ineffective assistance related solely to
the resentencing proceedings, it is clear that all of these claims would fall outside
of the narrow boundaries for the filing of a second § 2255 petition set out in
Verners III. See 1999 WL 332700, at *2 (“[O]ur consideration of Verners’
current § 2255 claims does not bar consideration of any future § 2255 motion
limited solely to issues related to the resentencing which we are addressing in this
direct appeal.”). To the extent that Verners might seek to raise in a future § 2255
motion any issues but those related solely to his resentencing proceeding he must
first seek permission from this court pursuant to § 2255 paragraph eight to file a
second or successive writ.

                                         -4-
be forthcoming, and specifically noted that the Motion was not a § 2255 motion.

The district court denied the Motion, concluding that it lacked a “factual basis.”

      It is well established in this Circuit that AEDPA’s one-year limitations

period is not jurisdictional but is, instead, subject to equitable tolling. See Moore

v. Gibson, 250 F.3d 1295, 1299 (10th Cir. 2001). “Equitable tolling is only

available when an inmate diligently pursues his claims and demonstrates that the

failure to timely file was caused by extraordinary circumstances beyond his

control.” Id. (quotation omitted). Verners has not identified, however, a single

case resolving the question of equitable tolling in advance of the actual filing of a

§ 2255 motion. In fact, until a § 2255 motion is actually filed and the affirmative

defense of the statute of limitations actually raised, the propriety of equitable

tolling is purely an abstract concern. “Under Article III of the Constitution,

federal courts have subject matter jurisdiction only over ‘cases and

controversies.’” United States v. Wilson, 244 F.3d 1208, 1213 (10th Cir. 2001).

One aspect of the case-or-controversy requirement is the ripeness doctrine, which

is “intended to prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements.” Id. Article III’s ripeness

requirement “forestall[s] judicial determinations of disputes until the controversy

is presented in clean-cut and concrete form.” Id. This court considers two issues

to determine whether a claim is ripe for adjudication: (1) the fitness of the issue


                                          -5-
for judicial resolution and (2) the hardship to the parties of withholding judicial

consideration. See id.

      We conclude that the question of equitable tolling is ripe for adjudication

only when a § 2255 motion has actually been filed and the statute of limitations

has been raised by the respondent or the court sua sponte. It is only at this point

that the record will be sufficient to determine whether the requisite “extraordinary

circumstances” are present to the magnitude necessary to merit equitable tolling.

Furthermore, this court can discern no hardship to Verners in withholding judicial

consideration of the question of equitable tolling until a § 2255 motion is actually

filed and limitations period raised. Accordingly, we conclude that question of

equitable tolling is not ripe and that the Motion is, therefore, not justiciable. The

case is thus REMANDED to the district court to VACATE its order denying the

Motion and to DISMISS the motion for lack of jurisdiction.



                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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