United States District Court, D. Colorado
ORDER DENYING MOTION UNDER 28 U.S.C. §
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Doc.
#914) filed August 26, 2019. In his § 2255 Motion, Mr.
Jacoby asserts a single claim of “actual innocence and
miscarriage of justice.” Id. at 4
Court must construe the § 2255 motion liberally because
Mr. Jacoby is not represented by an attorney. See Haines
v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam);
Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). However, the Court should not be
an advocate for a pro se litigant. See
Hall, 935 F.2d at 1110. For the reasons stated below,
the Court dismisses defendant’s § 2255 motion for
lack of jurisdiction.
a three-week jury trial, Mr. Jacoby was convicted of eleven
counts of wire fraud, three counts of money laundering, and
two counts of bank fraud. Doc. #520-1. He was sentenced to
108 months imprisonment and five years of supervised release.
Doc. #652. On direct appeal, the Tenth Circuit affirmed Mr.
Jacoby’s conviction and sentence. Doc. #797, United
States v. Zar, 790 F.3d 1036 (10th Cir. 2015). The
United States Supreme Court denied his petition for a writ of
certiorari. Doc. #812.
January 19, 2016, Mr. Jacoby filed a motion to vacate
pursuant to 28 U.S.C. § 2255 asserting four claims for
relief. Doc. #813. On November 9, 2017, the Court denied Mr.
Jacoby’s § 2255 motion because each of his claims
lacked merit. Doc. #880. On December 4, 2017, Mr. Jacoby
filed a motion to alter or amend the judgment pursuant to
Fed.R.Civ.P. 59(e), (Doc. #888), which the Court denied on
December 22, 2017, (Doc. #892). Mr. Jacoby appealed the
denial of his § 2255 motion, but the Tenth Circuit
denied a certificate of appealability and dismissed the
appeal. Doc. #910, United States v. Jacoby, 750 Fed.
App’x 689 (10th Cir. Oct. 4, 2018). He
requested a rehearing en banc, which the Tenth Circuit
denied. Doc. #911. On February 25, 2019, the United States
Supreme Court again denied a petition for writ of certiorari.
Doc. #913. Mr. Jacoby filed the instant § 2255 motion on
August 26, 2019. Doc. #914.
Mr. Jacoby filed a prior § 2255 motion that was denied
on the merits, the instant § 2255 motion is a second or
successive motion. Pursuant to § 2255(h) and 28 U.S.C.
§ 2244(b)(3), Mr. Jacoby must obtain an order from the
Tenth Circuit authorizing this Court to consider it. See
In re Cline, 531 F.3d 1249, 1250 (10th Cir.
2008) (per curiam). Absent such authorization, the district
court lacks jurisdiction to consider the § 2255 motion.
See Id. at 1251.
Jacoby does not allege that he has obtained the necessary
authorization from the Tenth Circuit to file a second or
successive § 2255 motion. Therefore, the Court must
either dismiss the § 2255 motion for lack of
jurisdiction or, if it is in the interest of justice,
transfer the matter to the Tenth Circuit pursuant to 28
U.S.C. § 1631. See Id. at 1252. The factors to
considered in deciding whether a transfer is in the interest
of justice include whether the claims would be time barred if
filed anew in the proper forum, whether the claims alleged
are likely to have merit, and whether the claims were filed
in good faith or if, on the other hand, it was clear at the
time of filing that the court lacked the requisite
Id. at 1251. When “there is no risk that a
meritorious successive claim will be lost absent a §
1631 transfer, a district court does not abuse its discretion
if it concludes it is not in the interest of justice to
transfer the matter.” Id. at 1252. In order to
present a meritorious successive claim, a federal prisoner
must demonstrate the claim is based on either “newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense,” 28
U.S.C. § 2255(h)(1), or “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable,” 28 U.S.C. § 2255(h)(2).
Jacoby fails to demonstrate that he is raising a claim based
on newly discovered evidence pursuant to § 2255(h)(1) or
a claim pursuant to a new and retroactive rule of
constitutional law under § 2255(h)(2). Although he
asserts that he has evidence that was not presented to the
jury, he does not allege that such evidence was “newly
discovered.” Therefore, the claim does not fall within
§ 2255(h)(1). See United States v. Maravilla,
566 Fed.Appx. 704, (10th Cir. 2014) (§
2255(h)(1) requires new evidence of actual factual
Mr. Jacoby fails to demonstrate that the claim which he seeks
to assert is meritorious, the Court finds that a transfer is
not in the interest of justice. See In re Cline, 531
F.3d at 1252. Instead, the § 2255 motion will be
dismissed for lack of jurisdiction.
Rule 11(a) of the Rules Governing Section 2255 Proceedings
for the United States District Courts, a “district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.”
Under 28 U.S.C. § 2253(c)(2), the Court may issue a
certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” Such a showing is made only when “a
prisoner demonstrates ‘that jurists of reason would
find it debatable’ that a constitutional violation
occurred, and that the district court erred in its
resolution.” United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (quoting S ...