United States v. Sandoval, 040610 FED10, 09-2306
|Opinion Judge:||Jerome A. Holmes, Circuit Judge|
|Party Name:||UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CURTIS SANDOVAL, Defendant-Appellant.|
|Judge Panel:||Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.|
|Case Date:||April 06, 2010|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
D. N.M., D.C. Nos. 1:09-CV-00680-MCA-WPL and 1:06-CR-00044-MCA-1
ORDER DENYING CERTIFICATE OF APPEALABILITY[*]
Curtis Sandoval applies for a certificate of appealability ("COA") to challenge the district court's dismissal of his 28 U.S.C. § 2255 motion as untimely. Mr. Sandoval also requests leave to proceed in forma pauperis ("IFP"). For the reasons discussed below, we deny the COA and the request to proceed IFP, and dismiss his appeal.
On July 13, 2009, Mr. Sandoval filed a § 2255 motion before the United States District Court for the District of New Mexico in which he alleged ineffective assistance of counsel and asserted that his sentence was in violation of the First Amendment. The district court had entered judgment on the relevant conviction on April 25, 2007. Mr. Sandoval did not appeal this conviction or sentence. Consequently, the district court, noting the one-year limitations period for § 2255 motions, entered a show cause order asking Mr. Sandoval to explain why his motion should not be dismissed as untimely. On August 25, 2009, the district court dismissed Mr. Sandoval's § 2255 motion with prejudice because it had not received the requested response from Mr. Sandoval.
However, the government, on August 26, 2009, filed a notice with the district court explaining that the government had received a copy of Mr. Sandoval's Response to the Show Cause Order on August 6, 2009, but was unaware that the court had not also received a copy until its receipt of the district court's Order of Dismissal. The government attached a copy of Mr. Sandoval's Response for the district court's consideration.
On August 28, 2009, the district court entered an Amended Order of Dismissal in which the court discussed Mr. Sandoval's Response. In his Response, Mr. Sandoval alleged that he did not have actual knowledge of the one-year statute of limitations. He also argued that the limitations period was unconstitutional and that the interests of the Navajo Tribe required the district court to consider his § 2255 motion. Having considered and rejected these arguments, the district court again dismissed Mr. Sandoval's § 2255 motion as untimely.
On September 3, 2009, Mr. Sandoval filed a Motion for Relief from Judgment and Rehearing, and on September 14, 2009, he filed a Notice of Appeal and a Motion for COA. On December 3, 2009, the district court explained that it had in fact considered the arguments in Mr. Sandoval's Response when it entered its Amended Order of Dismissal and, therefore, it denied his Motion for Relief from Judgment and Rehearing.1 In response, Mr. Sandoval filed another Notice of Appeal on December 11, 2009, and requested leave to proceed IFP. On December 29, 2009, the district court denied Mr. Sandoval's request to proceed IFP because he had not...
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