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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 James Joseph Wilson. The order summarizes that Wilson has made multiple attempts to challenge his 2004 conviction and sentence for bank robbery. Most recently, Wilson filed a motion to recall the mandate in his criminal case, which the district court dismissed for lack of jurisdiction, finding it was a successive 28 U.S.C. § 2255 motion requiring prior circuit court authorization. The Tenth Circuit denies a COA, finding reasonable jurists would not debate that Wilson's motion required prior authorization, so the district court properly dismissed it. The Tenth Circuit also denies Wilson's motion to remand.

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    Filed: 2013-02-19 Precedential Status: Non-Precedential Docket: 12-4152

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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 James Joseph Wilson. The order summarizes that Wilson has made multiple attempts to challenge his 2004 conviction and sentence for bank robbery. Most recently, Wilson filed a motion to recall the mandate in his criminal case, which the district court dismissed for lack of jurisdiction, finding it was a successive 28 U.S.C. § 2255 motion requiring prior circuit court authorization. The Tenth Circuit denies a COA, finding reasonable jurists would not debate that Wilson's motion required prior authorization, so the district court properly dismissed it. The Tenth Circuit also denies Wilson's motion to remand.

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    12 views4 pages

    United States v. Wilson, 10th Cir. (2013)

    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 James Joseph Wilson. The order summarizes that Wilson has made multiple attempts to challenge his 2004 conviction and sentence for bank robbery. Most recently, Wilson filed a motion to recall the mandate in his criminal case, which the district court dismissed for lack of jurisdiction, finding it was a successive 28 U.S.C. § 2255 motion requiring prior circuit court authorization. The Tenth Circuit denies a COA, finding reasonable jurists would not debate that Wilson's motion required prior authorization, so the district court properly dismissed it. The Tenth Circuit also denies Wilson's motion to remand.

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES COURT OF APPEALS

    FOR THE TENTH CIRCUIT

    February 19, 2013


    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    JAMES JOSEPH WILSON,

    No. 12-4152
    (D.C. No. 2:03-CR-00882-TC-1)
    (D. Utah)

    Defendant-Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY*

    Before OBRIEN, EBEL, and TYMKOVICH, Circuit Judges.


    James Joseph Wilson, a federal prisoner proceeding pro se, seeks to appeal
    the district courts dismissal for lack of jurisdiction of his motion to recall the
    mandate in his criminal case. He also seeks to appeal the district courts denial of his
    Fed. R. Civ. P. 59(e) motion to alter or amend that dismissal. We deny him a
    certificate of appealability (COA) and dismiss this proceeding.
    In 2004, Mr. Wilson pleaded guilty to one count of bank robbery in violation
    of 18 U.S.C. 2113(a) and (d). The district court found that he was a career offender
    and sentenced him to 188 months in prison, to be followed by a three-year term of
    *

    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.

    supervised release. Since that time, Mr. Wilson has made several attempts to attack
    his conviction and sentence.
    In 2005, Mr. Wilson filed a motion to vacate, set aside, or correct his sentence
    pursuant to 28 U.S.C. 2255, in which he argued that he was unconstitutionally
    sentenced under 18 U.S.C. 924(c). The district court rejected his arguments and
    denied his motion. He did not appeal from this denial.
    In 2008, he filed a motion for resentencing, seeking to modify his term of
    imprisonment pursuant to 18 U.S.C. 3582(c). The district court denied the motion,
    noting that 3582(c) only permits resentencing if the defendants conviction
    involved crack cocaine. The district court also denied his subsequent motion to alter
    or amend its judgment.
    In 2010, Mr. Wilson filed another 2255 motion, in which he challenged his
    sentencing classification as a career offender. The district court determined that the
    motion was second or successive and that he had failed to demonstrate that he had
    authorization from this court to file it. Accordingly, it transferred the motion to this
    court. We dismissed the transferred motion after Mr. Wilson failed to file the
    required motion for authorization to file a successive 2255 motion or to seek
    remand to the district court.
    In 2012, Mr. Wilson filed the present Motion to Recall the Mandate of This
    Courts Judgment in Defendants Case. R., Vol. 2 at 196. He argued that under an
    amendment to the Sentencing Guidelines, the career offender provision did not
    -2-

    apply to him, that his sentence was incorrect, that it should be vacated, and that he
    should be re-sentenced. The district court concluded that it is clear that Mr. Wilson
    is again seeking a reduction of his sentence pursuant to 28 U.S.C. 2255. Id.
    at 210. Accordingly, it dismissed the successive petition for lack of jurisdiction.
    Mr. Wilson filed a motion to alter or amend this judgment, which the district court
    denied. He then appealed from both the dismissal of his motion to recall the
    mandate, and the denial of his motion to alter or amend the judgment.
    Mr. Wilson must obtain a COA to pursue an appeal. United States v. Harper,
    545 F.3d 1230, 1233 (10th Cir. 2008). Because the district courts ruling rests on
    procedural grounds, he must show 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).
    In his COA application, Mr. Wilson argues the merits of his legal issues, but
    does not articulate any reason why his motion should not be subject to the
    authorization requirements of 2255(h). We have reviewed Mr. Wilsons motion
    and his application for COA and conclude that reasonable jurists could not debate the
    district court's conclusion that his motion to recall the mandate requires prior circuitcourt authorization. Because he lacked such authorization, the district court properly
    dismissed it for lack of jurisdiction. Finally, all of this being so, the district court did
    not err in denying Mr. Wilsons Rule 59(e) motion.
    -3-

    Accordingly, we deny a COA and dismiss this matter. We also deny


    Mr. Wilsons motion for remand.
    Entered for the Court

    ELISABETH A. SHUMAKER, Clerk

    -4-

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