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United States v. DeWilliams

United States Court of Appeals, Tenth Circuit

May 11, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GARY DeWILLIAMS, a/k/a Gary D. DeWilliams, Defendant-Appellant.

D.C. Nos. 1:99-CR-00120-REB-1 & 1:14-CV-01588-REB) (D. Colo.)

Before MATHESON, O'BRIEN, and PHILLIPS, Circuit Judges.

ORDER AND JUDGMENT [*]

Per Curiam

Gary deWilliams, proceeding pro se, seeks a certificate of appealability (COA) to appeal the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He also filed a notice of appeal from the court's imposition of filing restrictions. We deny a COA and affirm the filing restrictions.

BACKGROUND

In June 2002, Mr. deWilliams was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced to 293 months in prison. We affirmed his conviction. United States v. DeWilliams, 85 F.App'x 154, 159 (10th Cir.), cert. denied, 541 U.S. 1055 (2004). In May 2005, he filed his first § 2255 motion, asserting twenty claims. In 2008, the district court denied § 2255 relief, after granting motions to supplement or amend the initial § 2255 motion with additional claims. Like the district court, we denied a COA. United States v. DeWilliams, 315 F.App'x 81, 82 (10th Cir. 2009), cert. dismissed, 557 U.S. 931 (2009).

In 2012, Mr. deWilliams sought our authorization to file a second or successive § 2255 motion asserting, among many other things, actual innocence. We denied authorization. In re DeWilliams, No. 12-1321, at 4 (10th Cir. Sept. 7, 2012) (unpublished order).

Later in 2012, Mr. deWilliams moved in district court under Fed.R.Civ.P. 60(b) to set aside our order denying a COA in his § 2255 appeal. He contended that a photograph of the firearm showed his conviction was invalid. In an August 2013 order, the court first recognized that it had no jurisdiction to set aside this court's denial of a COA. Reading the motion leniently as also requesting relief from the denial of § 2255 relief, the court found that Mr. deWilliams had been aware of the photograph for more than ten years, he had repeatedly argued that the photograph showed there was not sufficient evidence to support his conviction, and the Rule 60(b) motion really was a successive § 2255 motion. Because he had not obtained authorization from this court to file a second or successive § 2255 motion, the district court denied the motion for lack of jurisdiction. Mr. deWilliams moved to reconsider, asserting that his Rule 60(b) motion was not a second or successive § 2255 motion. The court denied the motion. Mr. deWilliams appealed, but, later, voluntarily dismissed his appeal.

In February 2014, Mr. deWilliams filed in district court a motion under § 2255(f)(2) and (4) seeking to reopen his § 2255 motion because he allegedly had recently discovered that in 2005 prison officials had failed to mail a motion to amend or supplement his § 2255 motion regarding the photograph. The district court denied the motion as an unauthorized second or successive § 2255 motion.

In May 2014, Mr. deWilliams filed another § 2255(f)(2) and (4) motion seeking review of the order denying his Rule 60(b) motion and his most recent § 2255 motion. The district court again denied the motion, determining that it was an unauthorized second or successive § 2255 motion. Also, the court warned Mr. deWilliams that he could be subject to possible sanctions for abusing the judicial process if he continued to file unauthorized second or successive § 2255 motions.

That same day, Mr. deWilliams filed yet another § 2255 motion, arguing that the district court erred in deciding that under the categorical approach, second-degree burglary is a violent felony and that he is actually innocent of possessing the firearm.

The court dismissed the motion for lack of jurisdiction for several reasons: he had not obtained authorization before filing the motion, he had raised his claim of innocence previously, his alleged new evidence did not establish his innocence, and his claims are time-barred. Also, the court denied a COA and leave to proceed on appeal in forma pauperis. Noting Mr. deWilliams' pattern of filing unauthorized second or successive § 2255 motions, the court directed him to show cause why filing restrictions should not be imposed. After he responded, the court imposed detailed filing restrictions prohibiting him from filing new actions with respect to this felon-in-possession-of-a-firearm conviction unless he is represented by an attorney or has obtained court permission to proceed pro se. This appeal followed.

Mr. deWilliams argues that we should grant a COA because (1) the district court erred in failing to determine the timeliness of his first motion to amend his initial § 2255 motion to assert an actual innocence claim; (2) the court abused its discretion in denying his request for an evidentiary hearing; (3) his motion to amend was timely under § 2255(f)(2) and (4); (4) the court erred in concluding that his motions were second or ...


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