FILED
United States Court of Appeals
Tenth Circuit
July 27, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-4105
(D. Utah)
v.
(D.C. Nos. 2:10-CV-00170-DAK and
1:06-CR-00024-PGC-1)
STEVEN J. KELLY,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.
Petitioner, Steven J. Kelly, seeks a certificate of appealability (“COA”) so
he can appeal the district court’s dismissal of the motion to vacate, set aside, or
correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B) (providing a movant may not appeal the disposition of a § 2255
motion unless he first obtains a COA). In 2005, Kelly was convicted of two drug-
trafficking offenses. United States v. Kelly, 535 F.3d 1229, 1231 (10th Cir.
2008). Kelly’s conviction was affirmed by this court on August 5, 2008. Id. at
1243.
Kelly filed the instant § 2255 motion in federal district court on February
24, 2010, raising two ineffective assistance of counsel claims. The first was a
general claim that trial counsel failed to present an adequate defense. The second
claim alleged trial counsel was ineffective for failing to challenge the calculation
of Kelly’s criminal history category. On February 24, 2011, Kelly sought to
amend his § 2255 motion to add a claim that his trial counsel was ineffective for
failing to seek dismissal of the indictment because of a violation of the Speedy
Trial Act. See 18 U.S.C. § 3161.
The district court concluded Kelly’s conclusory allegations were
insufficient to support his general ineffective assistance claim. United States v.
Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). The court also concluded Kelly
could not show prejudice resulting from his attorney’s alleged deficient
performance at sentencing. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th
Cir. 1998) (holding a court may address Strickland’s performance and prejudice
prongs “in any order, but need not address both if [movant] fails to make a
sufficient showing of one”). Finally, the court concluded Kelly’s Speedy Trial
Act claim was untimely because he attempted to assert it more than one year after
his conviction became final. 1 See 28 U.S.C. § 2255(f) (setting forth a one-year
1
Once the district court concluded Kelly’s untimely amendment to his
§ 2255 motion did not relate back to the date of the original motion, the court
lacked jurisdiction to consider the merits of Kelly’s Speedy Trial Act claim. See
United States v. Espinoza-Saena, 235 F.3d 501, 503 (10th Cir. 2000) (affirming
the treatment of an untimely amendment to a § 2255 motion as a second or
successive habeas petition); United States v. Nelson, 465 F.3d 1145, 1148-49
(10th Cir. 2006) (“[I]f the prisoner’s pleading must be treated as a second or
successive § 2255 motion, the district court does not even have jurisdiction to
(continued...)
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statute of limitations for § 2255 motions); United States v. Espinoza-Saenz, 235
F.3d 501, 505 (10th Cir. 2000) (holding an untimely amendment to a § 2255
motion does not relate back to the date of the original motion if it seeks to add a
new claim). Accordingly, the district court denied Kelly’s § 2255 motion.
To be entitled to a COA, Kelly must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, he must demonstrate “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations
omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that
when a district court dismisses a habeas petition on procedural grounds, a
petitioner is entitled to a COA only if he shows both that reasonable jurists would
find it debatable whether he had stated a valid constitutional claim and debatable
whether the district court’s procedural ruling was correct). In evaluating whether
1
(...continued)
deny the relief sought in the pleading.”). In an abundance of caution, we construe
Kelly’s request for a COA on the Speedy Trial Act claim as an application for
authorization to file a second or successive § 2255 motion. See Pease v. Klinger,
115 F.3d 763, 764 (10th Cir. 1997). Our review of Kelly’s implied application
leads us to conclude he has failed to make the prima facie showing necessary for
filing a second or successive § 2255 motion because the claim does not involve
either newly discovered evidence or a previously unavailable, new rule of
constitutional law made retroactive to cases on collateral review by the Supreme
Court. See 28 U.S.C. § 2255(h). Accordingly, we deny Kelly’s implied
application to file a second or successive § 2255 motion.
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Kelly has satisfied his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Miller-El, 537 U.S. at 338. Although Kelly need not demonstrate his
appeal will succeed to be entitled to a COA, he must “prove something more than
the absence of frivolity or the existence of mere good faith.” Id. (quotations
omitted).
This court has reviewed Kelly’s appellate brief and application for COA,
the district court’s order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in Miller-El and concludes Kelly is not
entitled to a COA. Accordingly, we deny his request for a COA and dismiss this
appeal. Kelly’s request to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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