Bacon v. USA, No. 2:2019cv00735 - Document 12 (D. Utah 2019)
Court Description: MEMORANDUM DECISION AND ORDER denying Certificate of Appealability re 8 Notice of Appeal. Signed by Judge David Nuffer on 12/12/19 (alt)
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Bacon v. USA Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH MICHAEL A. BACON, Plaintiff, v. MEMORANDUM DECISION AND ORDER DENYING CERTIFICATE OF APPEALABILITY Case No. 2:19-cv-00735-DN (Criminal No. 2:14-cr-00563-DN) UNITED STATES OF AMERICA, District Judge David Nuffer Defendant. This case is on limited remand from the Tenth Circuit Court of Appeals to consider whether to issue a certificate of appealability. 1 “A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 2 “To achieve this, [the applicant] must show ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and . . . whether the district court was correct in its procedural ruling.’” 3 Mr. Bacon cannot make a substantial showing of the denial of a constitutional right. His claims 4 are not the appropriate subject matter of a motion under 28 U.S.C. § 2255. 5 He makes no argument demonstrating how his claims are not barred by his plea statement, in which he waived 1 Order, United States v. Bacon, no. 19-4167 (10th Cir. Dec. 10, 2019), docket no. 11, filed Dec. 10, 2019. 2 28 U.S.C. § 2253(c)(2). 3 United States v. Wicken, 514 Fed. App’x 721, 723 (10th Cir. 2013) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 4 Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (§ 2255 Motion”), docket no. 1, filed Oct. 3, 2019. 5 Memorandum Decision and Order of Dismissal at 5-6, docket no. 6, filed Nov. 20, 2019. Dockets.Justia.com his right to seek relief under § 2255 except on the issue of ineffective assistance of counsel. 6 And he makes no coherent argument showing the denial of a constitutional right. Moreover, jurisdiction over Mr. Bacon’s § 2255 Motion was lacking because the § 2255 Motion was his second attempt to obtain relief from his sentence under § 2255, and he did not obtain prior authorization for the filing from a panel of the Tenth Circuit Court of Appeal. 7 Mr. Bacon also did not assert newly discovered evidence or a new rule of constitutional law, which is required to obtain such authorization. 8 No reasonable jurist would find the dismissal of Mr. Bacon’s § 2255 Motion for lack of jurisdiction debatable. Therefore, IT IS HEREBY ORDERED that Mr. Bacon is denied a certificate of appealability. Signed December 12, 2019. BY THE COURT ________________________________________ David Nuffer United States District Judge 6 Id. at 6. 7 Id. at 4-5. 8 Id. at 6. 2
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