United States v. Timley

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 21, 2017
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3366
(D.C. Nos. 5:16-CV-04018-JAR,
DONNELL FRANCIS TIMLEY, 5:07-CR-40031-JAR-1)
(D. Kan.)
Defendant - Appellant.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
AND DISMISSING THE APPEAL
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
Mr. Donnell Timley is a federal inmate who filed a motion to vacate
his sentence under 28 U.S.C. § 2255. In the motion, Mr. Timley presented
constitutional challenges to his sentence. The district court dismissed the
§ 2255 motion on two grounds: (1) It was untimely, and (2) Mr. Timley
waived the right to collaterally attack his sentence.
Mr. Timley wants to appeal. To do so, he seeks a certificate of
appealability and leave to proceed in forma pauperis. See 28 U.S.C.
§ 2253(c)(1)(B) (certificate of appealability), 1915(a)(1) (leave to proceed
in forma pauperis).
We can issue a certificate of appealability only if the underlying
rulings on timeliness and waiver were at least reasonably debatable. See
Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (holding that when
the district court denies a habeas petition based on timeliness, the court of
appeals can issue a certificate of appealability only if the district court’s
ruling on timeliness is at least reasonably debatable).
In seeking a certificate of appealability, Mr. Timley reurges the
merits of his underlying claims. But he does not address the timeliness of
his § 2255 motion or say why he thinks the district court erred in finding a
waiver through the plea agreement. Though Mr. Timley is pro se, we
cannot craft arguments for him. Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
Because Mr. Timley does not question the district court’s reasons for
dismissing the § 2255 motion, we deny a certificate of appealability. As a
result, we must dismiss the appeal. See 28 U.S.C. § 2253(c)(1)(B). And in
the absence of a reasonably debatable appeal point, we deny Mr. Timley’s
request to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3); Rolland
v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007).
Entered for the Court
Robert E. Bacharach
Circuit Judge
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