Opinion
Criminal Case No. 99-cr-00120-REB
2013-09-13
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. GARY DeWILLIAMS, Defendant-Movant.
Judge Robert E. Blackburn
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY
Blackburn, J.
This matter is before me on the defendant's Motion for Certificate of Appealability [#458] filed September 4, 2013. I deny the motion.
"[#458]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
The defendant, Gary DeWilliams, is acting pro se. Therefore, I construe his filings generously and with the leniency due pro se litigants, see Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
Mr. DeWilliams seeks a certificate of appealability concerning my order [#447] denying his motion [#429] for relief under FED. R. CIV. P. 60(b). My order was filed August 9, 2013. In that order [#447], I concluded that Mr. DeWilliams' motion [#429] can be seen as either a request that this court vacate the February 27, 2009, order [#415] of the United States Court of Appeals for the Tenth Circuit, in which the Tenth Circuit denied Mr. DeWilliams' request for a certificate of appealability, or a successive motion under § 2255. I denied Mr. DeWilliams' Rule 60(b) motion because, no matter how the motion is read, this court lacks jurisdiction. Mr. DeWilliams seeks the issuance of a certificate of appealability concerning my order [#447].
Under 28 U.S.C. § 2253(c)(1), an appeal may not be taken from a "final order in a proceeding under § 2255" absent the issuance of 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." § 2255(c)(2). My order [#447] is not a final order in a proceeding under § 2255. A final order on Mr. DeWilliams' motion under § 2255 was issued long ago. Even if my order [#447] is viewed as a final order in a proceeding under § 2255, I find and conclude that it is not proper to issue a certificate of appealability. In his motion [#429] and reply [#442], Mr. DeWilliams did not make a substantial showing of the denial of a constitutional right.
THEREFORE, IT IS ORDERED that the defendant's Motion for Certificate of Appealability [#458] filed September 4, 2013, is DENIED.
Dated September 13, 2013, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge