United States v. Williams

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 5, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

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

Plaintiff - Appellee,
No. 07-6042
v. (D.C. Nos. CR-88-081-F and
01-CV-1012-A)
PATRICIA W ILLIAM S, (W .D. Okla.)

Defendant - Appellant.

ORDER
DENYING CERTIFICATE O F APPEALABILITY

Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.

Defendant-Appellant Patricia W illiams, a federal inmate appearing pro se,

seeks to appeal from the district court’s order denying her “M otion for Relief

from Judgment Pursuant to Rule 60(b)(4)(6), Fed. R. Civ. P.,” and its subsequent

denial of her motion for reconsideration. In the motion, M s. W illiams challenged

the district court’s O ctober 2001 disposition of her successful § 2255 motion to

modify and amend her sentence. She argued that: (1) she was not notified of her

right to assistance of counsel, (2) she was not allowed to reply to the

government’s response, (3) she was not allowed to be present when the sentence

was modified, (4) she was not notified of her right to appeal the sentence, and (5)

the government committed fraud on the court by failing to identify pre-Guidelines
conduct contained in two counts. Notably, M s. W illiams did not appeal from the

district court’s order and resulting judgment on her § 2255 motion. The district

court construed M s. W illiams’s current motion as a true Rule 60(b) motion, see

Gonzalez v. Crosby, 545 U.S. 524 (2005), but it denied the motion as untimely,

given that M s. W illiams filed it in October 2006, some five years after the district

court entered its order on her § 2255 motion. In the alternative, the district court

determined that the Rule 60(b) motion was meritless. A district court’s decision

to grant or deny a Rule 60(b) motion is reviewed for abuse of discretion. See

Yapp v. Excel Corp., 186 F.3d 1222, 1230 (10th Cir. 1999).

To secure a CO A, M s. W illiams must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires

that she demonstrate that “reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that the issues presented w ere

adequate to deserve encouragement to proceed further.” See M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. M cDaniel, 529 U.S. 473,

484 (2000)) (internal quotation marks omitted). Given that the substantive

standard of review is abuse of discretion, we do not think it reasonably debatable

that the district court erred by concluding that M s. W illiams’s motion was

untimely after considering her failure to appeal the initial § 2255 judgment, her

five year delay in filing the instant motion, and the Supreme Court’s issuance of

Gonzalez in 2005.

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W e DENY a COA and DISM ISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

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