FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 31, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6006
(D.C. Nos. 5:15-CV-01330-F and
MARK A. PRENTICE, 5:13-CR-00138-F-1)
(W.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before KELLY, MURPHY, and MATHESON, Circuit Judges.
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Mark A. Prentice, a federal prisoner proceeding pro se,1 seeks a certificate of
appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. He also seeks leave to proceed in
forma pauperis. Exercising jurisdiction under 28 U.S.C. § 1291, we deny both
requests and dismiss this matter.
* This order is not binding precedent, except under the doctrines of law of the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
Because Mr. Prentice is proceeding pro se, we construe his pleadings and
arguments on appeal liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e
must construe [a pro se litigant’s] arguments liberally; this rule of liberal construction
stops, however, at the point at which we begin to serve as his advocate.”).
I. BACKGROUND
On December 19, 2013, Mr. Prentice pled guilty to federal drug conspiracy
and money laundering charges. On June 18, 2014, the court sentenced Mr. Prentice
to 300 months in prison and entered final judgment against him on June 20, 2014.
The next year, on July 6, 2015, Mr. Prentice filed a pro se motion, which he
titled a “§ 3582(c)(2) motion,”2 and which the court re-characterized as a § 2255
motion. The court gave Mr. Prentice the chance to file his motion using a
standardized § 2255 form, but the court warned against Mr. Prentice raising any new
claims not originally presented in his July 6 motion. On December 4, 2015, Mr.
Prentice filed the standardized § 2255 form and raised new claims not raised in his
July 6 motion. Mr. Prenctice filed two supplements to his motions on October 6 and
November 3, 2016. In his two motions, Mr. Prentice raised 11 claims, including
claims based on ineffective assistance of counsel and lack of subject matter
jurisdiction.
The court denied Mr. Prentice’s subject matter jurisdiction claim, and it denied
the remaining claims as time-barred. The court also denied Mr. Prentice a COA to
appeal its order.
2
The motion was titled a “Pro Se Motion Asking [the District] Court to
Adhere to its Obligation to Satisfy Itself of Art. III Subject Matter Jurisdiction Before
it Passes on the Merits of Petitioners § 3582(c)(2) Motion[] as Mandated by Art. III
and Hays 515 U.S. at 742 (1995).” Record on Appeal (“ROA”), Vol. I at 40 (second
brackets in original).
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Mr. Prentice filed a motion under Federal Rule of Criminal Procedure 59(e) to
alter, amend, or reconsider the court’s denial of his § 2255 motion, which the court
also denied. The court again denied a COA.
On February 13, 2017, Mr. Prentice filed a motion for the court to reconsider
its COA denial, which the court similarly denied.
II. ANALYSIS
Mr. Prentice must obtain a COA to appeal the district court’s denial of his
§ 2255 motion. 28 U.S.C. § 2253(c)(1)(B). Where, as here, the district court
dismissed the motion on procedural grounds, we will grant a COA only if Mr.
Prentice can demonstrate both “that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
We agree with the district court that Mr. Prentice’s appeal does not warrant a
COA. On appeal, Mr. Prentice does not challenge the court’s ruling that his claims
were time-barred. He instead contends the court erred in dismissing his claims
because their merits “trump” any issue concerning their timeliness. Aplt. Br. at 3.
Specifically, he states: “[A] claim of involuntary servitude trumps the time bar in
question and jurisdictional denial of counsel and lack of subject matter jurisdiction
claims must be heard.” Id. He states that a COA is justified “to address whether
[his] subjection to involuntary servitude trumps the one year limitation period and/or
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whether the . . . one year li[m]itation violates the 13th [A]mendment’s prohibition of
involuntary servitude.” Id. at 4.
Mr. Prentice’s argument lacks merit. The Supreme Court has held that
dismissing a § 2255 motion as time-barred is proper—without assessing the motion’s
merits. Cf. Dodd v. United States, 545 U.S. 353, 359 (2005) (recognizing that the
time-bar for § 2255 motions creates “the potential for harsh results in some cases”
but declining “to rewrite the statute that Congress has enacted”). He has thus not
raised a question over which reasonable jurists could debate.
To the extent he seeks to raise a separate claim under the Thirteenth
Amendment, or argue that such a claim would “trump” any time bar under § 2255,
we deny a COA because Mr. Prentice failed to raise this as a separate claim in district
court. And to the extent Mr. Prentice challenges the district court’s subject matter
jurisdiction over his criminal case and sentence, his claim lacks merit. 18 U.S.C.
§ 3231 (providing that federal district courts have jurisdiction for cases involving
federal crimes).
III. DISPOSITION
We deny Mr. Prentice’s request for a COA and dismiss this matter. We also
deny Mr. Prentice’s request to proceed in forma pauperis.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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