FILED
United States Court of Appeals
Tenth Circuit
August 12, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-1350
v. (D. Colorado)
EVER ENRIQUE CAICEDO, (D.C. Nos. 1:91-CR-00355-LTB
and 1:08-CV-01853-LTB)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
Ever Enrique Caicedo was sentenced in the United States District Court for
the District of Colorado in 1992 on a guilty plea to possession with intent to
distribute cocaine. See 21 U.S.C. § 841(a)(1), (b)(1)(A). His sentence was
reduced in 1993. In 1998 jurisdiction over his case was transferred to the
Southern District of Texas. See 18 U.S.C. § 3605. On August 29, 2008,
Mr. Caicedo moved for relief under 28 U.S.C. § 2255 in the District of Colorado.
The district court ruled that to the extent that Mr. Caicedo was challenging
actions taken before transfer of his case to Texas, his claims were untimely. See
28 U.S.C. § 2255(f). And to the extent that his claims related to actions after
transfer of his case, he needed to pursue relief in the Southern District of Texas.
The court therefore denied his motion. Mr. Caicedo has applied to this court for a
certificate of appealability (COA) to enable him to appeal the denial. See 28
U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 relief).
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard
requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the [motion] should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). If the motion was denied on
procedural grounds, as it was in this case, the applicant faces a double hurdle.
Not only must the applicant make a substantial showing of the denial of a
constitutional right, but he must also show “that jurists of reason would find it
debatable . . . whether the district court was correct in its procedural ruling.” Id.
For the reasons stated by the district court, Mr. Caicedo was clearly not
entitled to relief. We DENY a COA and DISMISS his appeal. We GRANT his
motion for leave to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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