United States v. Wesley ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 23, 2013
_______________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-3149
(D. Kan.)
MONTERIAL WESLEY, (D.C. Nos. 2:12-CV-02704-JWL &
2:07-CR-20168-JWL-2)
Defendant - Appellant.
_______________________________
ORDER ∗
_______________________________
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges
_______________________________
In federal district court, Mr. Monterial Wesley was convicted of: (1)
conspiracy to manufacture and possess cocaine and cocaine base with the intent
to distribute, and (2) use of a telephone to facilitate a drug transaction. After
unsuccessfully asking the district court to vacate the sentence under 28 U.S.C.
§ 2255, Mr. Wesley appeals. We can only entertain the appeal if Mr. Wesley is
entitled to a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B) (2006).
Holding that he is not entitled to this certificate, we dismiss the appeal.
∗
This order does not constitute precedent. See 10th Cir. R. 32.1(A).
Standard for Certificate of Appealability
To obtain a certificate of appealability, Mr. Wesley must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2006). For this showing, Mr. Wesley must demonstrate that
“reasonable jurists could 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.’” Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
Mr. Wesley’s Appellate Arguments
Mr. Wesley applies for a certificate of appealability on three grounds: (1)
His sentence was based on clearly erroneous facts; (2) the district court usurped
the role of the jury in making witness credibility determinations; and (3) the
prosecution’s evidence lacked indicia of reliability.
Mr. Wesley did not raise any of these issues in the motion that he filed in
district court. R. vol. 1, at 69-80 (Mr. Wesley’s 28 U.S.C. § 2255 motion); R.
vol. 1, at 81-113 (Mr. Wesley’s brief in support of his 28 U.S.C. § 2255 motion).
Because these issues are presented for the first time on appeal, they cannot justify
a certificate of appealability. See United States v. Viera, 674 F.3d 1214, 1220
(10th Cir. 2012) (absent extraordinary circumstances, this Court will not consider
arguments for a certificate of appealability that are raised for the first time in an
appeal).
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Conclusion
Because we cannot entertain Mr. Wesley’s new appellate arguments, we
cannot issue a certificate of appealability. And without a certificate of
appealability, we must dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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