Opinion
2:16-cr-00020-DN
06-07-2024
UNITED STATES OF AMERICA, Plaintiff, v. MARLON ALONZO SMITH, Defendant.
MEMORANDUM DECISION AND ORDER DENYING CERTIFICATE OF APPEALABILITY
David Nuffer United States District Judge
This case is on limited remand from the Tenth Circuit Court of Appeals to consider whether to issue a certificate of appealability.“A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” “To achieve this, [the defendant] must show ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and . . . whether the district court was correct in its procedural ruling.'”
Order, United States v. Smith, no. 24-4066 (10th Cir. June 5, 2024), docket no. 284, filed June 5, 2024.
United States v. Wicken, 514 Fed. App'x 721, 723 (10th Cir. 2013) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Mr. Smith cannot make a substantial showing of the denial of a constitutional right with his Motion for Relief Under Hazel-Atlas. Mr. Smith's arguments under FED. R. CIV. P. 60(d)(3) and the Supreme Court's opinion in Hazel-Atlas Glass Co. v. Hartford-Empire Co. challenge only his criminal case and his conviction and sentence.Under binding precedent, such challenges regardless of their label “must be considered a second-or-successive collateral attack” subject to authorization requirements of 28 U.S.C. § 2255(h).
Docket no. 273, filed Apr. 29, 2024.
322 U.S. 238 (1944).
Motion for Relief Under Hazel-Atlas at 6, 8-26.
United States v. Baker, 718 F.3d 1204, 1207 (10th Cir. 2013).
Because Mr. Smith did not first seek authorization from the Tenth Circuit Court of
Appeals for the filing of his Motion for Relief Under Hazel-Atlas His as a second-or-successive motion under 28 U.S.C. § 2255, subject matter jurisdiction is lacking. No reasonable jurist would find the denial and dismissal without prejudice of Mr. Smith's Motion for Relief Under Hazel-Atlas for lack of jurisdiction debatable. Therefore, IT IS HEREBY ORDERED