United States District Court, D. Utah
ORDER DENYING CERTIFICATE OF APPEALABILITY
N. Parrish United States District Court Judge
October 4, 2017, this court issued an order denying
Petitioner Alfred Cesspooch's § 2255 motion to
vacate, set aside, or correct his sentence. See ECF
Cesspooch seeks to appeal the court's order, but he
cannot take his appeal to the Tenth Circuit without a
certificate of appealability (COA). See 28 U.S.C.
§ 2253(c)(1). And Rule 11(a) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts requires that a district court “must issue or
deny a certificate of appealability when it enters a final
order adverse to the applicant.” Until September 2017,
the Tenth Circuit relied on its decision in United States
v. Kennedy, 225 F.3d 1187 (10th Cir. 2000) to deem a COA
denied if district courts did not rule within thirty days of
the filing of the notice of appeal. However, in United
States v. Higley, No. 17-1111, at *6-7 (10th Cir. Sep.
29, 2017) (unpublished), the Tenth Circuit held that
Kennedy was no longer good law and that, “if
the district court has not ruled on COA, this court should
order a limited remand for the district court to rule on
this court denied Mr. Cesspooch's § 2255 motion, it
did not address whether a COA should issue. Consequently, and
in light of Higley, the Tenth Circuit directed a
limited remand for this court “to consider whether to
issue a COA for this appeal.” United States v.
Cesspooch, No. 17-4160 (10th Cir. Feb. 13, 2018).
28 U.S.C. § 2253(c)(2), this court may issue a COA
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” The proper
standard for that determination is a simple question: Could
“reasonable jurists . . . debate whether (or, for that
matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(citation omitted), rev'd on other grounds,
Miller-El v. Dretke, 545 U.S. 231 (2005). With this
standard in mind, Mr. Cesspooch has not made the requisite
October 4, 2017 order, this court considered whether Mr.
Cesspooch's motion was untimely under 28 U.S.C. §
2255, which requires that post-conviction motions for
habeas relief be brought within one year of the date
on which “the judgment of conviction becomes
final” or “the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C.
§ 2255(f)(1), (3). Mr. Cesspooch argued that the Supreme
Court had recognized a new right applicable to his case in
Johnson v. United States, 135 S.Ct. 2551 (2015). But
the court disagreed and held that his motion was untimely.
time, the court relied upon its own interpretation of §
2255(f) and its application by several circuit courts and
other holdings in this district. But on February 6, 2018, the
Tenth Circuit addressed the same question in United
States of America v. Greer, No. 16-1282 (10th Cir. Feb.
6, 2018). In that case, the Tenth Circuit held that Mr. Greer
asserted a right “not to be sentenced under the
residual clause of § 4B 1.2(a)(2) of the mandatory
Guidelines.” Id. at *10. However, “[t]he
Supreme Court has recognized no such right.”
Id. Therefore, “Mr. Greer [had] not asserted a
right recognized in Johnson, ” and the panel
held that his motion was untimely. Id.
speaks directly to the issue Mr. Cesspooch raised in his
petition. As did Mr. Greer, Mr. Cesspooch asserted a right
not to be sentenced under the residual clause of § 4B
1.2(a)(2) of the mandatory Guidelines. But as this court held
then and as the Tenth Circuit held in Greer, the
Supreme Court has recognized no such right. Considering the
Tenth Circuit's clear holding resolving this precise
issue earlier this month, Mr. Cesspooch has not made a
substantial showing that he was denied a constitutional
right. No. reasonable jurist could debate whether Mr.
Cesspooch's petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further.
reasons above, the court denies Mr. Cesspooch a COA as to his
§ 2255 motion.