United States v. Davis

489 F. App'x 294

Opinion

ORDER DENYING CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO FILE A SECOND OR SUCCESSIVE 28 U.S.C. § 2255 MOTION

TERRENCE L. O’BRIEN, Circuit Judge.

In 2008, Jason Todd Davis filed a 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel. Approximately two and one half years later he sought to amend the § 2255 motion. The district court denied the relief originally sought and denied leave to amend because the request was not timely presented. Davis sought a Certificate of Appealability (COA) on both issues, which we denied. United States v. Davis, 426 Fed.Appx. 622, 625 (10th Cir.2011).

About a year after our decision, Davis filed a Rule 60(b) motion resurrecting his arguments about the district court’s refusal to permit him to amend his § 2255 motion. He included four new claims under § 2255. The district court denied the motion. Davis appealed from the decision.

A COA is required to appeal from the denial of a true Rule 60(b) motion. Spitznas v. Boone, 464 F.3d 1213, 1218 (10th Cir.2006). Davis did not seek a COA, but we treat his notice of appeal and brief as an implied request for a COA. Fed. R.App. P. 22(b)(2). We deny his request for a COA.

Davis’s new § 2255 claims are second or successive, requiring our approval before they can be addressed by the district court. In re Shines, 696 F.3d 1330, 1332 (10th Cir.2012). His claims are utterly without merit; we deny leave to pursue them.

DISMISSED.