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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding William Newman's appeal of the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. The court granted a certificate of appealability to address whether a district court can sua sponte dismiss a § 2255 motion without notice. However, the government then filed a motion to dismiss the appeal, arguing that Newman's § 2255 motion was successive. The court of appeals vacated the district court's order dismissing the § 2255 motion, as the district court lacked jurisdiction over a successive motion. The court of appeals then construed Newman's appeal as an implied application for leave to file a successive § 2255 motion

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    Filed: Patrick Fisher

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding William Newman's appeal of the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. The court granted a certificate of appealability to address whether a district court can sua sponte dismiss a § 2255 motion without notice. However, the government then filed a motion to dismiss the appeal, arguing that Newman's § 2255 motion was successive. The court of appeals vacated the district court's order dismissing the § 2255 motion, as the district court lacked jurisdiction over a successive motion. The court of appeals then construed Newman's appeal as an implied application for leave to file a successive § 2255 motion

    Original Description:

    Filed: 2002-01-22 Precedential Status: Non-Precedential Docket: 00-3364

    Original Title

    United States v. Newman, 10th Cir. (2002)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding William Newman's appeal of the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. The court granted a certificate of appealability to address whether a district court can sua sponte dismiss a § 2255 motion without notice. However, the government then filed a motion to dismiss the appeal, arguing that Newman's § 2255 motion was successive. The court of appeals vacated the district court's order dismissing the § 2255 motion, as the district court lacked jurisdiction over a successive motion. The court of appeals then construed Newman's appeal as an implied application for leave to file a successive § 2255 motion

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    12 views4 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding William Newman's appeal of the denial of his 28 U.S.C. § 2255 motion to vacate his sentence. The court granted a certificate of appealability to address whether a district court can sua sponte dismiss a § 2255 motion without notice. However, the government then filed a motion to dismiss the appeal, arguing that Newman's § 2255 motion was successive. The court of appeals vacated the district court's order dismissing the § 2255 motion, as the district court lacked jurisdiction over a successive motion. The court of appeals then construed Newman's appeal as an implied application for leave to file a successive § 2255 motion

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    of 4

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JAN 22 2002

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    WILLIAM H. NEWMAN,
    Defendant-Appellant.

    No. 00-3364
    (D.C. Nos. 00-CV-3337,
    87-CR-30008)
    (D. Kan.)

    ORDER AND JUDGMENT

    Before EBEL , KELLY , and LUCERO , Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination
    of this appeal.

    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

    therefore ordered submitted without oral argument.


    This appeal is taken from a district court order denying sua sponte
    defendants 28 U.S.C. 2255 motion to vacate his sentence as untimely filed.

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    We granted a certificate of appealability under 28 U.S.C. 2253(c)(1)(B) and


    directed the government to address the issue of whether and under what
    circumstances the district court may sua sponte dismiss an action under 2255
    without first providing the defendant with notice and an opportunity to respond to
    the courts proposed dismissal.
    In response, the government filed a motion to dismiss the appeal because
    the district court lacked jurisdiction to entertain the 2255 motion, as it was
    See United States v. Newman ,

    successive to one filed and denied in 1991.

    No. 91-3149, 1991 WL 151780 (10th Cir. Aug. 8, 1991). Defendant has had the
    opportunity to respond to the motion to dismiss as provided by
    10th Cir. R. 27.2(A)(4) , but has not done so.
    Under 28 U.S.C. 2244, a prisoner may not file a successive motion under
    2255 without first obtaining permission from this court.

    See Daniels v. United

    States , 254 F.3d 1180, 1188 (10th Cir. 2001). Therefore the district court lacked
    jurisdiction to rule on the second motion, and we must vacate the district courts
    order. See United States v. Avila-Avila , 132 F.3d 1347, 1348-49 (10th Cir.
    1997); Lopez v. Douglas , 141 F.3d 974, 975-76 (10th Cir. 1998).
    We will, however, construe defendants notice of appeal and his pro se
    brief as an implied application to file a second 2255 motion in district court.

    -2-

    Avila-Avila , 132 F.3d at 1349. In order to obtain permission to file a successive


    application, defendant must show that his motion contains
    (1) newly discovered evidence that, if proven and viewed in light of
    the evidence as a whole, would be sufficient to establish by clear and
    convincing evidence that no reasonable factfinder would have found
    the movant guilty of the offense; or
    (2) a new rule of constitutional law, made retroactive to cases on
    collateral review by the Supreme Court, that was previously
    unavailable.
    28 U.S.C. 2255.
    Defendant recited alleged trial errors and argues that his sentence for the
    escape charge should have been made to run concurrently with another conviction
    or convictions. He also alleges that under Amendment 289 to the United States
    Sentencing Guidelines (USSG 5G1.3), if an offense is committed while on
    escape the escape charge will be dropped. Appellants Br. at 15.
    Upon review of defendants arguments, we are satisfied that he has
    failed to meet the requirements for filing a successive 2255 application.
    Accordingly, we GRANT the governments motion to dismiss. The district
    courts order of November 1, 2000, disposing of defendants second petition is
    VACATED, and defendants implied application for leave to file a second
    2255 motion in district court is DENIED. Inasmuch as the district court

    -3-

    granted defendants motion for leave to proceed in forma pauperis, the like
    motion made in this court is DENIED as moot.
    Entered for the Court

    David M. Ebel
    Circuit Judge

    -4-

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