FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 5, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-6040
(D.C. Nos. 5:11-CV-00897-F and
v. 5:10-CR-00071-F-1)
(W.D. Okla.)
MICHAEL LAVORUS NELSON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
Michael Lavorus Nelson, a federal prisoner appearing pro se, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his 28
U.S.C § 2255 motion, asserting he should have been sentenced for a crack cocaine
offense under the Fair Sentencing Act of 2010, (FSA), Pub. L. No. 111-220, 124
Stat. 2372 (2010), in effect at his sentencing. Nelson cites two grounds for relief:
*
This order and judgment is not binding precedent except under the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.
**
After examining defendant’s brief and the appellate record, this three-
judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral
argument.
a violation of due process and ineffective assistance of counsel. On the
ineffective assistance of counsel claim, the district court ruled Nelson could not
establish prejudice because, even if counsel’s performance was deficient, the FSA
did not apply retroactively to Nelson’s pre-Act offense. The district court
dismissed the due process claim as procedurally barred, concluding that because
Nelson could not show his trial counsel was ineffective, no cause existed to
excuse the default.
The Supreme Court recently held in Dorsey v. United States, Nos. 11-5683
and 11-5721, 2012 WL 2344463 (U.S. June 21, 2012), that the FSA does apply to
offenders, like Nelson, who committed a crack cocaine crime before August 3,
2010, but were not sentenced until after August 3. Because the district court’s
decision turned on a contrary interpretation of federal law which has now been
clarified, Nelson’s application for a COA is GRANTED, the judgment is
VACATED and the case is REMANDED for further consideration in light of
Dorsey. Nelson’s motion to proceed in forma pauperis is GRANTED, as is the
United States’ motion for summary disposition. The mandate shall issue
forthwith.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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