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U.S. v. DOOLEY, 02-cr-00324-REB (2015)

Court: District Court, D. Colorado Number: infdco20150805688 Visitors: 18
Filed: Aug. 04, 2015
Latest Update: Aug. 04, 2015
Summary: ORDER DENYING MOTION TO RECONSIDER ROBERT E. BLACKBURN , District Judge . The matter is before me on the defendant's pro se Motion Requesting Reconsideration of Court's August 22, 2010 Order Denying Motion Pursuant to 28 U.S.C. 2255 [#114] 1 filed October 1, 2012. 2 On November 2, 2012, the government filed a response [#117], and on November 23, 2012, Mr. Dooley filed a reply [#118]. After careful review of the motion and the file, I conclude that the motion should be denied whether
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ORDER DENYING MOTION TO RECONSIDER

The matter is before me on the defendant's pro se Motion Requesting Reconsideration of Court's August 22, 2010 Order Denying Motion Pursuant to 28 U.S.C. § 2255 [#114]1 filed October 1, 2012.2 On November 2, 2012, the government filed a response [#117], and on November 23, 2012, Mr. Dooley filed a reply [#118]. After careful review of the motion and the file, I conclude that the motion should be denied whether considered as a bona fide motion to reconsider because it flunks under the standards enunciated in U.S. v. Christy, 739 F.3d 534, 539 (10th Cir. 2014); or as a successive motion to vacate under 28 U.S.C. § 2255(h) because this court lacks jurisdiction and the Tenth circuit Court of Appeals has not authorized its filing; or as a motion to alter or amend a judgment under Fed. R. Civ. P. 59(e) because it is not timely filed; or as a motion seeking relief from a judgment under Fed. R. Civ. P 60(b) because it is not factually and legally unwarranted.3

Under Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, a "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Under 28 U.S.C. § 2253(c)(2), this court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." Such a showing is made only when "a prisoner demonstrates `that jurists of reason would find it debatable' that a constitutional violation occurred, and that the district court erred in its resolution." United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). To the extent Mr. Dooley is seeking relief under 28 U.S.C. § 2255, he has not made a substantial showing of the denial of a constitutional right. Therefore, a certificate of appealability is denied.

Under 28 U.S.C. § 1915(a)(3), the court certifies that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Dooley files a notice of appeal, he also must pay the full appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.

THEREFORE, IT IS ORDERED as follows:

1. That the Motion Requesting Reconsideration of Court's August 22, 2010 Order Denying Motion Pursuant to 28 U.S.C. § 2255 is denied;

2. That to the extent relevant, a certificate of appealability is denied;

3. That leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit; and

4. That Civil Action No. 12-cv-02148-REB is closed.

FootNotes


1. "[#114]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
2. Mr. Dooleyis proceeding pro se; thus, I have afforded him the judicial munificence due a pro se litigant. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
3. I adopt and approve the reasons stated, arguments advanced, and authorities cited by the government in its response [#117] in further support of my findings, conclusions, and orders.
Source:  Leagle

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