FILED
United States Court of Appeals
Tenth Circuit
November 17, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v No. 11-4064
(D.C. Nos. 2:05-CR-00616-BSJ-1 and
DARREN BRAD WEST, 2:10-CV-00716-BSJ)
(D. Utah)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, EBEL, and MATHESON, Circuit Judges.
Darren Brad West, proceeding pro se, 1 seeks a certificate of appealability
(COA) to appeal the district court’s dismissal for lack of jurisdiction of his
motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. 2 We
DENY Mr. West’s application for a COA and DISMISS his appeal.
*
This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We liberally construe Mr. West’s pro se pleadings. See United States v.
Shipp, 589 F.3d 1084, 1088 (10th Cir. 2009).
2
Although Mr. West originally filed a motion to modify, correct, and/or
reduce his sentence under 18 U.S.C. § 3582, the district court construed the
motion as a request for § 2255 relief. Mr. West now agrees that he is seeking
relief from his sentence through § 2255.
I.
In 2006, Mr. West pleaded guilty to and was convicted of two
methamphetamine-related charges in violation of 21 U.S.C. § 841(c): knowingly
possessing phosphorus and iodine and knowing or having reason to know that the
chemicals would be used to manufacture methamphetamine. He was sentenced to
108 months’ imprisonment. Mr. West appealed his sentence, asserting that the
district court erred in using U.S.S.G. § 2D1.1(c)(2), instead of § 2D1.11, to set his
offense level; and (2) the district court erred in determining the amount of
methamphetamine that could be produced from the iodine. Rejecting these
assertions, this court affirmed. See United States v. West, 257 F. App’x 76, 78-80
(10th Cir. 2007).
Thereafter, in February 2009, Mr. West filed a § 2255 motion asserting that
his trial counsel was ineffective. On April 16, 2009, the district court denied
relief. Mr. West did not appeal.
In July 2010, Mr. West filed a motion to modify, correct, and/or reduce his
sentence under 18 U.S.C. § 3582. He contended that (1) he was actually innocent
of the imposed sentence because it was improperly enhanced under § 2D1.1 as
there was no admission or jury finding that anyone manufactured or attempted to
manufacture methamphetamine; (2) his sentence was null and void because the
district court lost jurisdiction; and (3) the sentencing factors were manipulated.
Recognizing that Mr. West’s motion challenged the lawfulness of his sentence,
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the court decided that he could only obtain relief in a § 2255 proceeding. The
court therefore deemed his filing to be an unauthorized second or successive
§ 2255 motion. See 28 U.S.C. § 2255(h) (“A second or successive § 2255 motion
must be certified as provided in section 2244 by a panel of the appropriate court
of appeals . . . .”); id. § 2244(b)(3)(A) (“Before a second or successive
application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the district
court to consider the application.”). Declining to transfer the motion to this court,
the district court dismissed it for lack of jurisdiction on November 15, 2010. See
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
On April 4, 2011, Mr. West filed a notice of appeal indicating that he
sought to appeal the 2009 denial of § 2255 relief. Mr. West also filed a motion
for a COA to appeal the 2010 decision. The district court denied a COA for lack
of jurisdiction.
II.
We first consider whether Mr. West’s appeal is timely. We “can exercise
jurisdiction only if a notice of appeal is timely filed.” Allender v. Raytheon
Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006). When the United States is a
party, a timely notice of appeal must be filed within sixty days after entry of final
judgment. Fed. R. App. P. 4(a)(1)(B). If no separate final judgment is entered, a
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timely notice of appeal must be filed within 150 days of the district court’s
decision. Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii).
Mr. West sought to appeal the 2009 denial of § 2255 relief nearly two years
after the district court entered judgment. An appeal from the 2009 denial of
§ 2255 relief is untimely. Although no separate judgment was filed, Mr. West
filed his notice of appeal more than 150 days after entry of the order denying
§ 2255 relief.
Mr. West sought to appeal the 2010 dismissal for lack of jurisdiction more
than four and a half months after the district court filed its decision. An appeal
with respect to that dismissal is not untimely, because the district court did not
enter a separate judgment and Mr. West filed his notice of appeal less than 150
days after the denial of § 2255 relief. We therefore proceed to the merits of
Mr. West’s COA application with respect to the 2010 decision.
III.
A COA is a jurisdictional prerequisite to our review of the district court’s
decision. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). We will issue
a COA “only if [Mr. West] has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court denied
his § 2255 motion on procedural grounds, we will grant a COA only if he “shows,
at least, that jurists of reason would find it debatable whether the [motion] states
a valid claim of the denial of a constitutional right and that jurists of reason
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would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
We conclude that Mr. West has failed to make this showing. Under the
circumstances of this case, it is not debatable that the district court, when
presented with an unauthorized second or successive application, correctly
dismissed it for lack of jurisdiction. This is so because no reasonable jurist could
debate the correctness of the district court’s conclusion that Mr. West had failed
to obtain authorization from this court to file a second or successive § 2255
motion alleging a claim based on “newly discovered evidence” or “a new rule of
constitutional law.” 28 U.S.C. § 2255(h) (setting forth requirements for filing
second or successive § 2255 motion). Rather, Mr. West’s claims are the same or
similar to the claims he asserted on direct appeal, and are an attempt by him to
challenge the same conviction and sentence he challenged in his first § 2255
motion.
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IV.
Accordingly, we DENY Mr. West’s application for a COA, and we
DISMISS this appeal.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
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