Appellate Case: 22-1422 Document: 010110833778 Date Filed: 03/28/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1422
(D.C. No. 1:01-CR-00395-JLK-1)
JAMES FLOYD CLEAVER, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, KELLY, and BACHARACH, Circuit Judges.
_________________________________
James Floyd Cleaver, a federal prisoner proceeding pro se, filed a motion that
the district court construed as an unauthorized 28 U.S.C. § 2255 motion. The district
court denied the motion on that basis, and Cleaver now moves for a certificate of
appealability (COA). We deny a COA and dismiss this matter.
I. BACKGROUND & PROCEDURAL HISTORY
In 2003, a federal jury convicted Cleaver of arson and other offenses related to
the destruction of certain IRS offices in Colorado Springs. The district court imposed
a 400-month prison sentence. Cleaver then pursued an unsuccessful appeal and an
*
This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 22-1422 Document: 010110833778 Date Filed: 03/28/2023 Page: 2
unsuccessful § 2255 motion, and he has since filed multiple unsuccessful motions in
the district court invoking other authorities to attack his conviction and sentence.
Last year, Cleaver moved for authorization from this court to file a new § 2255
motion (No. 22-1163). Through a FOIA request, he had recently received an arson
investigator’s report for the fire in question. He argued that certain details in that
report, combined with other evidence available at the time of trial (although mostly
not presented to the jury), showed a likelihood of actual innocence. We rejected that
argument and denied his motion.
About a month later, Cleaver filed a Federal Rule of Civil Procedure 60(b)(6)
motion in the district court. Cleaver based this motion on the same evidence and
arguments he presented in the motion for authorization we had just denied. The
district court denied this motion as, in substance, an unauthorized § 2255 motion.
Cleaver soon filed a letter with the district court requesting appointed counsel
and an evidentiary hearing. Cleaver acknowledged that this court had not authorized
a new § 2255 motion, but he insisted that he still had a right to present an actual-
innocence argument, to avoid a miscarriage of justice. His letter included a summary
of the evidence presented in his Rule 60(b)(6) motion, which he believed an
evidentiary hearing would corroborate. The district court determined that this request
was, in substance, another unauthorized § 2255 motion, and denied it for lack of
jurisdiction.
Cleaver next filed a motion with the district court requesting a COA so he
could appeal the denial of his letter requesting counsel and an evidentiary hearing.
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The district court denied that motion. Finally, Cleaver filed the notice of appeal
leading to the current proceeding. Cleaver’s notice states that he is appealing the
district court’s “denial of his request for Certificate of Appealability.” R. at 228.
II. ANALYSIS
“If the [district] court denies a [COA], a party may not appeal the denial but
may seek a [COA] from the court of appeals under Federal Rule of Appellate
Procedure 22.” Rule 11(a), Rules Governing § 2255 Proceedings. Thus, Cleaver
may not use the denial of a COA as the basis for a notice of appeal.
This alone is not fatal because, “[e]ven if a notice fails to properly designate
the order from which the appeal is taken, this Court has jurisdiction if the appellant’s
intention was clear,” Fleming v. Evans, 481 F.3d 1249, 1253–54 (10th Cir. 2007).
We have no doubt Cleaver actually intended to appeal the order at issue in his district
court motion for a COA, namely, the order denying his letter requesting appointment
of counsel and an evidentiary hearing. We will focus our COA analysis on that
order.
To merit a COA, Cleaver “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). And he must make an extra showing
in this circumstance because the district court resolved his motion on a procedural
basis, namely, lack of jurisdiction. So he must also show that “jurists of reason
would find it debatable whether the district court was correct in its procedural
ruling.” Id.
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Jurists of reason would not debate the district court’s procedural ruling.
Cleaver’s explicit purpose for requesting counsel and an evidentiary hearing was to
reopen proceedings in his criminal case and attempt to prove his innocence. In
substance, that amounts to an unauthorized § 2255 motion, so the district court
correctly refused to exercise jurisdiction over it. See In re Pickard, 681 F.3d 1201,
1205 (10th Cir. 2012).
III. CONCLUSION
We deny a COA and dismiss this matter. We grant Cleaver’s motion to
proceed without prepayment of costs or fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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