FILED
United States Court of Appeals
Tenth Circuit
March 30, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-6004
v. (W.D. Oklahoma)
VERNON JEFFREY NOLAN, (D.C. Nos. 5:10-CV-01326-HE and
5:08-CR-00064-HE-1)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Vernon Jeffrey Nolan, appearing pro se, requests a certificate of
appealability (COA) to appeal the district court’s denial of his motion for relief
under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal
dismissal of § 2255 motion). Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
In 2008 Mr. Nolan pleaded guilty to being a felon in possession of a
firearm, see 18 U.S.C. § 922(g)(1), and was sentenced to a mandatory minimum
sentence of 15 years. See United States v. Nolan, 342 F. App’x 368, 370 (10th
Cir. 2009). This is his fourth trip to this court to challenge that conviction and
sentence. First, on direct appeal of his conviction, he challenged the
constitutionality of his sentence on five grounds, but we affirmed his sentence.
See id. at 370–71. Second, he unsuccessfully appealed the district court’s denial
of his motion to have his sentence modified under 18 U.S.C. § 3582(c)(2). See
United States v. Nolan, 359 F. App’x 941 (10th Cir. 2010). Undaunted, he then
filed a nonsensical “Motion for Clarification of Referral” under 28 U.S.C. §
636(b)(1)(B). United States v. Nolan, 387 F. App’x 883, 884 (10th Cir. 2010).
The district court denied the motion, and again we affirmed. See id. at 883.
The present proceeding began on December 8, 2010, when Mr. Nolan filed
in the United States District Court for the Western District of Oklahoma a motion
for relief under § 2255. The motion is virtually incomprehensible. On
December 21 the district court denied the motion on the ground that Mr. Nolan
had “failed to state a basis for habeas relief.” R. at 25. The court explained that
“[t]he grounds asserted—‘AUSA Mike Clayton decline to file charge in Sept.
2007’; ‘held on state charges while indicted’; ‘state prior’; and ‘the separation of
a consolidate case’—do not allege a constitutional violation or a basis for
concluding that the judgment in this case is otherwise contrary to law.” Id.
In this court Mr. Nolan is no more comprehensible. His three claims of
error are (1) that “[i]n September of 2007 AUSA Mike Clayton decline to file
charges on Mr. Nolan where he told the state to take case back to state where one
count of a felon in possession of firearm was file by doing so he gave jurisdiction
to the state[,]” Aplt. Br. at 5; (2) that “on February 26, 08 the state took [his]
bonds pend a bond hearing, on March 5, 08 [he] received a three hundred
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thousand bonds after being indicted as result of forum shopping,” id. at 6; and (3)
that he “had already served time for [his] state prior in the state not in the Federal
government so that is to difference sovereignty.” Id. Mr. Nolan filed a
memorandum to accompany his brief, but it is no more intelligible. Our best
guess as to its meaning—and it can only be a guess—is that he is complaining
that between his indictment and his sentence on the federal charge, the federal
prosecutor referred his case to the state for prosecution of a drug charge. In any
event, he fails to raise an intelligible meritorious claim. He repeatedly refers to
“double jeopardy” and case law on that doctrine. But he cannot complain about
being prosecuted in both state and federal court. “[T]he proposition that the State
and Federal Governments may punish the same conduct is too plain to need more
than statement.” Heath v. Alabama, 474 U.S. 82, 89 (1985) (parentheses and
internal quotation marks omitted).
“A certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the
merits,” the prisoner “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Slack v McDaniel, 529 U.S. 473, 484 (2000). Because no reasonable jurist could
debate that Mr. Nolan’s claims lack merit, he is not entitled to a COA.
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III. CONCLUSION
We DENY a COA and DISMISS the appeal. We also DENY Mr. Nolan’s
request to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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