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    This document is an order from the United States Court of Appeals for the Tenth Circuit denying a certificate of appealability to Darrell Washington. It summarizes that Washington was convicted of drug and firearm charges and his conviction was affirmed on appeal. He later filed a §2255 motion arguing ineffective assistance of counsel, which the district court denied. Washington then filed a Rule 60(b) motion stating he did not receive the denial, which the district court granted to allow him to appeal. The Tenth Circuit reviews whether to grant a COA to allow the appeal, and determines that no reasonable jurist could debate the district court's ruling, so it denies the COA and dismisses the appeal.

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    Filed: 2009-01-16 Precedential Status: Non-Precedential Docket: 08-4180

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    This document is an order from the United States Court of Appeals for the Tenth Circuit denying a certificate of appealability to Darrell Washington. It summarizes that Washington was convicted of drug and firearm charges and his conviction was affirmed on appeal. He later filed a §2255 motion arguing ineffective assistance of counsel, which the district court denied. Washington then filed a Rule 60(b) motion stating he did not receive the denial, which the district court granted to allow him to appeal. The Tenth Circuit reviews whether to grant a COA to allow the appeal, and determines that no reasonable jurist could debate the district court's ruling, so it denies the COA and dismisses the appeal.

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    Public Domain
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    14 views3 pages

    United States v. Washington, 10th Cir. (2009)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit denying a certificate of appealability to Darrell Washington. It summarizes that Washington was convicted of drug and firearm charges and his conviction was affirmed on appeal. He later filed a §2255 motion arguing ineffective assistance of counsel, which the district court denied. Washington then filed a Rule 60(b) motion stating he did not receive the denial, which the district court granted to allow him to appeal. The Tenth Circuit reviews whether to grant a COA to allow the appeal, and determines that no reasonable jurist could debate the district court's ruling, so it denies the COA and dismisses the appeal.

    Copyright:

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    of 3

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS

    January 16, 2009


    TENTH CIRCUIT

    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,

    No. 08-4180

    v.

    (D. Utah)

    DARRELL EUGENE WASHINGTON,

    (D.C. No. 1:07-CV-00003-DB)

    Defendant - Appellant.

    ORDER DENYING
    CERTIFICATE OF APPEALABILITY *

    Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this proceeding. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case
    is therefore ordered submitted without oral argument.
    Darrell Eugene Washington was found guilty, following a jury trial, of
    possession with intent to distribute crack cocaine and possession of ammunition

    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.

    as a convicted felon, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C.


    922(g)(1), respectively. This court affirmed Washingtons conviction and
    sentence. United States v. Washington, 157 Fed. Appx. 43, 2005 WL 3257511
    (10 th Cir. 2005).
    Washington, proceeding pro se, then filed a 28 U.S.C. 2255 motion,
    arguing that he received ineffective assistance of counsel because his trial counsel
    failed to make a particular argument. The district court concluded that the
    argument would not have been meritorious if made, and denied Washingtons
    2255 motion. Washington did not appeal that decision. He then filed a motion
    to vacate the prior judgment, which the district court construed as a Fed. R. Civ.
    P. 60(b) motion. Washington argued that, because of actions inside the Bureau of
    Prisons, he never received the courts order denying his 2255 motion and he
    therefore lost his right to appeal.
    The district court granted the motion, vacated its earlier decision, and
    reinstated its order denying the 2255 motion. The district court did not grant or
    deny a certificate of appealability (COA). Accordingly, Washington has filed a
    motion for a COA as well as a pro se appellate brief. We, therefore, must first
    address whether to grant Washington a COA to enable him to appeal the district
    courts denial of his 2255 motion.
    In order to obtain a COA, a petition must make a substantial showing of
    the denial of a constitutional right, 28 U.S.C. 2253(c)(2), such that reasonable
    -2-

    jurists would find the district courts assessment of the constitutional claims
    debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). In
    addressing this question we review Washingtons pro se filings with special
    solicitude. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10 th Cir. 2007).
    Even according Washingtons materials such a solicitous construction, we
    conclude, based upon our own review of the record, and for substantially the same
    reasons given by the district court, that no reasonable jurist could debate the
    correctness of the district courts ruling. Washingtons request for a COA is
    therefore denied and this appeal is dismissed.
    ENTERED FOR THE COURT

    Stephen H. Anderson
    Circuit Judge

    -3-

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