United States v. Medina, 10th Cir. (2013)
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United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 12, 2013
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Elisabeth A. Shumaker
Clerk of Court
PlaintiffAppellee,
v.
JOSE MEDINA, JR.,
DefendantAppellant.
No. 12-3305
(D.C. Nos. 2:09-CR-20006-JWL-1,
2:12-CV-02195-JWL &
2:11-CV-02422-JWL)
(D. Kan.)
ORDER DENYING CERTIFICATE OF APPEALABILITY AND
DENYING AUTHORIZATION UNDER 28 U.S.C. 2255(H)*
Before BRISCOE, Chief Judge, KELLY and MATHESON, Circuit Judges.
Jose Medina, Jr. seeks to appeal the district courts dismissal of his second
28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence and his
subsequent Fed. R. Civ. P. 60(b) motion. In the alternative, he seeks this courts
authorization to proceed with successive 2255 claims. See 28 U.S.C. 2255(h).
We deny a certificate of appealability (COA) and deny authorization.
In 2009 Mr. Medina pleaded guilty to participating in a conspiracy to
distribute and possess with the intent to distribute cocaine, and in 2010 he was
This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
sentenced to 97 months of imprisonment. He filed a 2255 motion in 2011, which
the district court dismissed as untimely. Instead of appealing, Mr. Medina filed a
second 2255 motion in 2012. The district court dismissed that motion as an
unauthorized second or successive 2255 motion. Mr. Medina moved to reconsider
the dismissal under Fed. R. Civ. P. 59(e) or in the alternative to reopen his first
2255 case under Rule 60(b). The district court denied the motion to reconsider and
dismissed the Rule 60(b) motion as an unauthorized successive 2255 motion.
Mr. Medina filed a timely notice of appeal.
Mr. Medinas combined opening brief and application for COA mentions the
dismissal of the first 2255 motion, the dismissal of the second 2255 motion, and
the dismissal of the Rule 60(b) motion. But the notice of appeal is timely only as to
the dismissal of the second 2255 motion (because the Rule 59(e)/Rule 60(b) motion
tolled the time for appeal, see Fed. R. App. P. 4(a)(4)(A)(iv), (vi)) and the dismissal
of the Rule 60(b) motion. Therefore, we cannot consider any challenges to the
dismissal of the first 2255 motion.
To appeal the dismissals of the second 2255 motion and the Rule 60(b)
motion, Mr. Medina must secure a COA. To do so, he must show that jurists of
reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right, and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473,
484 (2000).
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Mr. Medina argues that the district court erred in construing the Rule 60(b)
motion as a successive 2255 motion because the Rule 60(b) motion did not attack
his conviction, but simply sought to show how the prosecutions denial of access to
the evidence kept him from timely filing his first 2255 motion. Contrary to his
assertions on appeal, however, the Rule 60(b) motion attacks the validity of his
conviction. See R. Vol. 1 at 149 (alleging, under the heading RULE 60(b)
MOTION, that the government fabricated an alleged conspiracy charge without
any evidence; there was no proof that statute[ ]had been violated by petitioner;
the government committed fraud upon the court; and this fabricated evidence
made the conviction null and void for lack of subject matter jurisdiction); id. at 150
(indicating that Mr. Medina wanted to add new claims after perusing the evidence).
Reasonable jurists could not debate the correctness of the district courts decision
that the Rule 60(b) motion was subject to authorization under 2255(h). See
Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005) (holding that a Rule 60(b)
motion that presents grounds entitling a petitioner to habeas corpus relief or seeks
to add a new ground for relief requires authorization).
Mr. Medina also contends that the district court should not have dismissed the
second 2255 motion or the Rule 60(b) motion, but instead should have transferred
them to this court for authorization. But although the district court may transfer a
second or successive 2255 motion to this court, it is not required to do so. In re
Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). Given that the district
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court concluded that transferring the filings would not serve the interest of justice
under 28 U.S.C. 1631, no reasonable jurist could conclude that the court was
required to transfer rather than to dismiss.
Mr. Medina alternatively requests authorization to file a successive 2255
motion. He contends that he is actually innocent of conspiracy and that his guilty
plea was based on fraudulent evidence that was concealed by the government and
defense counsel. He alleges that counsel was ineffective in the plea process,
particularly by failing to move for suppression of evidence under the Fourth
Amendment, agreeing to a dissemination restriction that allowed Mr. Medina to
plead guilty and be sentenced without being shown any of the evidence or the
presentence report, and vouching for and failing to investigate the evidence.
Mr. Medina first relies on 2255(h)(1), which requires a prima facie showing
of 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 [him] guilty of the offense. For his new
evidence, he points to the evidence allegedly withheld from him due to the
dissemination restriction and certain affidavits/statements by alleged
co-conspirators, in which one denies receiving from or selling cocaine for
Mr. Medina and another denies participating in a cocaine conspiracy with him. But
this evidence falls short of making a prima facie case that a reasonable factfinder
would not find Mr. Medina guilty, and thus fails to satisfy 2255(h)(1). As the
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district court noted, Mr. Medina and the alleged co-conspirators could all be involved
in the same conspiracy without dealing with or even knowing each other. See United
States v. Foy, 641 F.3d 455, 465 (10th Cir.) (The interdependence element [of
conspiracy] does not require that the government prove the coconspirators know the
identities or details of each scheme or have connections with all the other members of
the conspiracy. (internal quotation marks omitted)), cert. denied, 132 S. Ct. 467
(2011).
Mr. Medina also seems to invoke 2255(h)(2), which requires a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable, by citing Missouri v. Frye, 132 S. Ct. 1399
(2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012). Frye and Lafler do not satisfy
2255(h)(2), however, because they do not articulate a new rule of constitutional
law. See Williams v. United States, __ F.3d __, No. 12-2659, 2013 WL 238877, at
*1 (8th Cir. Jan. 23, 2013) (per curiam) (collecting cases).
Mr. Medinas motion for leave to proceed on appeal without prepayment of
costs or fees is granted. His request for a COA and his alternative request for
authorization to file a successive 2255 motion are denied. The addendum filed
provisionally under seal on February 4, 2013, shall remain filed under seal.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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