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    This document is a court order denying a certificate of appealability to Darren Brad West, who sought to appeal the dismissal of his second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district court had construed West's motion under 18 U.S.C. § 3582 as a § 2255 motion and dismissed it for lack of jurisdiction as an unauthorized second or successive § 2255 motion. The appeals court finds that West's appeal of the denial of his first § 2255 motion in 2009 was untimely. As for his 2010 motion, the appeals court agrees with the district court that it did not have jurisdiction over West's second § 2255 motion

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    Filed: 2011-11-17 Precedential Status: Non-Precedential Docket: 11-4064

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    This document is a court order denying a certificate of appealability to Darren Brad West, who sought to appeal the dismissal of his second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district court had construed West's motion under 18 U.S.C. § 3582 as a § 2255 motion and dismissed it for lack of jurisdiction as an unauthorized second or successive § 2255 motion. The appeals court finds that West's appeal of the denial of his first § 2255 motion in 2009 was untimely. As for his 2010 motion, the appeals court agrees with the district court that it did not have jurisdiction over West's second § 2255 motion

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    12 views6 pages

    United States v. West, 10th Cir. (2011)

    Uploaded by

    Scribd Government Docs
    This document is a court order denying a certificate of appealability to Darren Brad West, who sought to appeal the dismissal of his second motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district court had construed West's motion under 18 U.S.C. § 3582 as a § 2255 motion and dismissed it for lack of jurisdiction as an unauthorized second or successive § 2255 motion. The appeals court finds that West's appeal of the denial of his first § 2255 motion in 2009 was untimely. As for his 2010 motion, the appeals court agrees with the district court that it did not have jurisdiction over West's second § 2255 motion

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    of 6

    FILED

    United States Court of Appeals


    Tenth Circuit

    November 17, 2011


    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT

    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v
    DARREN BRAD WEST,

    No. 11-4064
    (D.C. Nos. 2:05-CR-00616-BSJ-1 and
    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 courts 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. Wests 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. Wests pro se pleadings. See United States v.


    Shipp, 589 F.3d 1084, 1088 (10th Cir. 2009).

    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. Appx 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. Wests motion challenged the lawfulness of his sentence,
    -2-

    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. Wests 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

    -3-

    timely notice of appeal must be filed within 150 days of the district courts
    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. Wests COA application with respect to the 2010 decision.
    III.
    A COA is a jurisdictional prerequisite to our review of the district courts
    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
    -4-

    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 courts 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. Wests 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.

    -5-

    IV.
    Accordingly, we DENY Mr. Wests application for a COA, and we
    DISMISS this appeal.

    Entered for the Court,

    ELISABETH A. SHUMAKER, Clerk

    -6-

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