United States v. DeWilliams ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
February 27, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 08-1410
(D.C. Nos. 05-cv-00893-REB
GARY D. DEWILLIAMS,
and 99-cr-00120-REB)
(D. Colo.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
Gary D. DeWilliams was found guilty of possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On
appeal, this court vacated his conviction and remanded for a new trial because his
attorney had stipulated to an element of the crime without Mr. DeWilliams’s
consent. United States v. DeWilliams, 2001 WL 1580900 (10th Cir. 2001).
Following remand, Mr. DeWilliams was again found guilty, and was sentenced to
a term of imprisonment of 293 months. This court affirmed his conviction and
sentence on appeal. United States v. DeWilliams, 2004 WL 33632 (10th Cir.
*
This order is not binding precedent except under the doctrines of law of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.
2004). Mr. DeWilliams then filed the instant collateral challenge to his
confinement pursuant to 28 U.S.C. § 2255. In an extensively reasoned opinion,
the district court denied relief and Mr. DeWilliams’s request for a certificate of
appealability (“COA”).
Mr. DeWilliams now seeks a COA from us to enable him to appeal the
district court’s denial of his § 2255 motion. In order to secure a COA, a
petitioner must make a “substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), such that “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong,”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). In assessing this question, we
review Mr. DeWilliams’s pro se filings with special solicitude. See Van Deelen
v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Even when viewed through this lens, however, to the extent that Mr.
DeWilliams seeks to challenge the district court’s disposition of his § 2255
motion, we conclude based on our review of the record, and for substantially the
same reasons given by the district court in its thoughtful opinion, that no
reasonable jurist could debate the correctness of that court’s rulings. To the
extent Mr. DeWilliams seeks to raise new issues on appeal that were not
presented to the district court, we decline to consider them. See Dockins v. Hines,
374 F.3d 935, 940 (10th Cir. 2004) (court of appeals may decline to consider
novel argument in application for COA not presented first to the district court).
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Mr. DeWilliams’s request for COA is therefore denied and this appeal is
dismissed. We further deny his application to proceed in forma pauperis.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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