Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 2, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1053 (D.C. Nos. 1:19-CV-01976-PAB & DELANO MARCO MEDINA, 1:14-CR-00396-PAB-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges. _________________________________
Delano Marco Medina, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) from the district court’s denial of his Federal Rule of Civil
Procedure 60(b) motion to reopen his 28 U.S.C. § 2255 proceedings. The district
court construed the motion as an unauthorized second or successive § 2255 motion
and dismissed it for lack of jurisdiction. We deny a COA and dismiss this matter.
I. BACKGROUND & PROCEDURAL HISTORY
A. Conviction & Appeal
A federal grand jury in the District of Colorado indicted Medina in October
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 2
2014 on a single felon-in-possession charge. In June 2015, the grand jury handed
down a superseding indictment, adding charges for bank fraud, mail theft, and
identity theft. But the states of Colorado, Kansas, and Nevada were prosecuting
Medina at the same time, so Medina did not appear in federal court to answer the
federal charges until January 2017.
Once in federal court, Medina moved to dismiss the superseding indictment,
asserting that the delay between the indictment and his first appearance violated his
Sixth Amendment right to a speedy trial. More specifically, he claimed his phone
went missing during that timeframe, so he could no longer access electronic records
showing, for example, that he was not where the indictment alleged him to be at the
time of the charged crimes.
In April 2017, the district court held an evidentiary hearing on Medina’s
motion. The hearing included testimony from Medina’s grandmother that she
retrieved his phone from his belongings stored at a Colorado jail, but the phone went
missing after that. At the end of the hearing, the district court denied the motion,
reasoning (among other things) that Medina had failed to show his missing phone
was the only possible source for the electronic records in question.
Medina then brought various other pretrial motions, not relevant here. But he
eventually agreed to plead guilty to a subset of charges in the superseding indictment,
while reserving his right to appeal the district court’s speedy-trial ruling.
On appeal, we accepted Medina’s argument that the delay between the
indictment and his initial appearance led to the irretrievable loss of his cell phone.
2 Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 3
But we concluded, like the district court, that Medina had “not established that he
could not obtain the alleged alibi information from sources other than his cell phone.
. . . [J]ust because information stored in multiple places is not available from one
source does not mean it is not available from any source.” United States v. Medina,
918 F.3d 774, 791 (10th Cir. 2019). We therefore affirmed. Id. at 793.
B. First § 2255 Motion
Returning to the district court, Medina filed a 28 U.S.C. § 2255 motion.
Among other things, he claimed ineffective assistance of counsel at the speedy trial
hearing because his attorney failed to call additional witnesses and submit affidavits,
all of which would have bolstered his claim that the electronic records in question
became “truly irretrievable” when he lost his phone. R. vol. 1 at 89. In support,
Medina attached three affidavits.
The first affidavit was from his mother. She stated that Medina’s Facebook
profile had been deleted, his cell phone carrier cannot track lost phones, and his bank
statements were “only partially helpful” or “not definitive.” Id. at 113.
The second affidavit was from Medina’s ex-wife. She stated she no longer had
access to text messages between herself and Medina from the relevant time frame.
The third affidavit was from Medina’s grandmother. As noted above, she
ended up testifying at the speedy trial hearing about the loss of Medina’s cell phone.
Her affidavit, however, said nothing about the phone, or about efforts to recover lost
information.
3 Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 4
Before the district court decided the § 2255 motion, Medina filed a motion to
expand the record, attaching two new affidavits. The first was from his aunt, who
stated that she could not find his Facebook page and could not recover it because
Medina “could not remember his email.” Id. at 299. She also “confirmed [via a
Facebook support page] that [a Facebook] account could be deleted.” Id. The second
affidavit was from Medina’s brother, who stated that he tried to help Medina recover
his Gmail account but Google requires either a backup e-mail address or a phone
number. Apparently Medina had no backup e-mail address, and Google did not
recognize his phone number. Medina’s brother further stated that another brother
“and his teenage friends stole the phone,” and they “may have deleted the email
account from the phone.” Id. at 300. Finally, he “determined [via a Google support
page that a Gmail] account could be erased.” Id.
The district court denied Medina’s § 2255 motion. In relevant part, the district
court addressed Medina’s ineffective-assistance argument as follows:
While Mr. Medina argues that these witnesses would show how the cell phone and location data are irretrievable, as the Tenth Circuit found on appeal, the issue is not whether the cell phone data was irretrievable, a point which Mr. Medina demonstrated, but whether the information was unavailable from other sources. Even if Mr. Medina and his witnesses testified that the cell phone data was irretrievable, there is no reasonable probability that the result of the proceeding would have been different because such testimony does not relate to the ability of Mr. Medina to get that information from other sources.
4 Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 5
R. vol. 1 at 367 (citations, alterations, and internal quotation marks omitted). The
district court also denied Medina’s motion to expand the record. Finally, the court
denied a COA.
Medina filed a notice of appeal, and his application for a COA is pending
before this court in Case No. 21-1300.
C. Rule 60(b) Motion
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Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 2, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1053 (D.C. Nos. 1:19-CV-01976-PAB & DELANO MARCO MEDINA, 1:14-CR-00396-PAB-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, KELLY, and PHILLIPS, Circuit Judges. _________________________________
Delano Marco Medina, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) from the district court’s denial of his Federal Rule of Civil
Procedure 60(b) motion to reopen his 28 U.S.C. § 2255 proceedings. The district
court construed the motion as an unauthorized second or successive § 2255 motion
and dismissed it for lack of jurisdiction. We deny a COA and dismiss this matter.
I. BACKGROUND & PROCEDURAL HISTORY
A. Conviction & Appeal
A federal grand jury in the District of Colorado indicted Medina in October
* 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. Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 2
2014 on a single felon-in-possession charge. In June 2015, the grand jury handed
down a superseding indictment, adding charges for bank fraud, mail theft, and
identity theft. But the states of Colorado, Kansas, and Nevada were prosecuting
Medina at the same time, so Medina did not appear in federal court to answer the
federal charges until January 2017.
Once in federal court, Medina moved to dismiss the superseding indictment,
asserting that the delay between the indictment and his first appearance violated his
Sixth Amendment right to a speedy trial. More specifically, he claimed his phone
went missing during that timeframe, so he could no longer access electronic records
showing, for example, that he was not where the indictment alleged him to be at the
time of the charged crimes.
In April 2017, the district court held an evidentiary hearing on Medina’s
motion. The hearing included testimony from Medina’s grandmother that she
retrieved his phone from his belongings stored at a Colorado jail, but the phone went
missing after that. At the end of the hearing, the district court denied the motion,
reasoning (among other things) that Medina had failed to show his missing phone
was the only possible source for the electronic records in question.
Medina then brought various other pretrial motions, not relevant here. But he
eventually agreed to plead guilty to a subset of charges in the superseding indictment,
while reserving his right to appeal the district court’s speedy-trial ruling.
On appeal, we accepted Medina’s argument that the delay between the
indictment and his initial appearance led to the irretrievable loss of his cell phone.
2 Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 3
But we concluded, like the district court, that Medina had “not established that he
could not obtain the alleged alibi information from sources other than his cell phone.
. . . [J]ust because information stored in multiple places is not available from one
source does not mean it is not available from any source.” United States v. Medina,
918 F.3d 774, 791 (10th Cir. 2019). We therefore affirmed. Id. at 793.
B. First § 2255 Motion
Returning to the district court, Medina filed a 28 U.S.C. § 2255 motion.
Among other things, he claimed ineffective assistance of counsel at the speedy trial
hearing because his attorney failed to call additional witnesses and submit affidavits,
all of which would have bolstered his claim that the electronic records in question
became “truly irretrievable” when he lost his phone. R. vol. 1 at 89. In support,
Medina attached three affidavits.
The first affidavit was from his mother. She stated that Medina’s Facebook
profile had been deleted, his cell phone carrier cannot track lost phones, and his bank
statements were “only partially helpful” or “not definitive.” Id. at 113.
The second affidavit was from Medina’s ex-wife. She stated she no longer had
access to text messages between herself and Medina from the relevant time frame.
The third affidavit was from Medina’s grandmother. As noted above, she
ended up testifying at the speedy trial hearing about the loss of Medina’s cell phone.
Her affidavit, however, said nothing about the phone, or about efforts to recover lost
information.
3 Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 4
Before the district court decided the § 2255 motion, Medina filed a motion to
expand the record, attaching two new affidavits. The first was from his aunt, who
stated that she could not find his Facebook page and could not recover it because
Medina “could not remember his email.” Id. at 299. She also “confirmed [via a
Facebook support page] that [a Facebook] account could be deleted.” Id. The second
affidavit was from Medina’s brother, who stated that he tried to help Medina recover
his Gmail account but Google requires either a backup e-mail address or a phone
number. Apparently Medina had no backup e-mail address, and Google did not
recognize his phone number. Medina’s brother further stated that another brother
“and his teenage friends stole the phone,” and they “may have deleted the email
account from the phone.” Id. at 300. Finally, he “determined [via a Google support
page that a Gmail] account could be erased.” Id.
The district court denied Medina’s § 2255 motion. In relevant part, the district
court addressed Medina’s ineffective-assistance argument as follows:
While Mr. Medina argues that these witnesses would show how the cell phone and location data are irretrievable, as the Tenth Circuit found on appeal, the issue is not whether the cell phone data was irretrievable, a point which Mr. Medina demonstrated, but whether the information was unavailable from other sources. Even if Mr. Medina and his witnesses testified that the cell phone data was irretrievable, there is no reasonable probability that the result of the proceeding would have been different because such testimony does not relate to the ability of Mr. Medina to get that information from other sources.
4 Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 5
R. vol. 1 at 367 (citations, alterations, and internal quotation marks omitted). The
district court also denied Medina’s motion to expand the record. Finally, the court
denied a COA.
Medina filed a notice of appeal, and his application for a COA is pending
before this court in Case No. 21-1300.
C. Rule 60(b) Motion
A few months after filing the notice of appeal, Medina filed a motion with the
district court titled, “Motion for Relief from Final Judgment in §2255 Proceeding
Pursuant to Fed. R. Civ. P. 60(b)(4) and (6).” R. vol. 4 at 30 (capitalization
standardized). Medina understood that the district court could not exercise
jurisdiction over an ostensible Rule 60(b) motion that was, in substance, a new or
repeated § 2255 claim. See id. at 31 (quoting Gonzalez v. Crosby, 545 U.S. 524,
531–32 (2005), for the notion that a Rule 60(b) motion is, in substance, a successive
habeas petition if it “seeks to add a new ground for relief” or “attacks the federal
court[’]s previous resolution of a claim on the merits” (internal quotation marks
omitted)). Medina thus argued that the district court had failed to address one of his
arguments. See id. at 30 (quoting Spitznas v. Boone, 464 F.3d 1213, 1224–25
(10th Cir. 2006), for the proposition that a Rule 60(b) motion remains appropriate in
a habeas proceeding if the “district court failed to consider one of his habeas claims,”
because this represents “a defect in the integrity of the federal habeas proceedings”
(internal quotation marks omitted)). The overlooked argument, according to Medina,
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was “the dispositive claim of cell phone evidence being unavailable from other
sources and how the affidavits prove this.” Id. at 31.
The district court disagreed. It found that it had “addressed the argument and
specific evidence,” so Medina’s Rule 60(b) motion was really an unauthorized
attempt to reargue a claim already decided on the merits. Id. at 84. The district court
therefore dismissed the motion for lack of jurisdiction, and it denied a COA.
Medina filed another notice of appeal in the district court, which this court
docketed as the instant case, No. 22-1053. He now seeks a COA to appeal the district
court’s dismissal of his Rule 60(b) motion.
II. ANALYSIS
To merit a COA, Medina must “ma[ke] a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This means he “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). And he
must make an extra showing in this circumstance because the district court denied his
motion on a procedural ground, namely, lack of jurisdiction. So he must also show
that “jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Id.
“[W]e look at the relief sought, rather than a pleading’s title or its form, to
determine whether it is a second-or-successive collateral attack on a defendant’s
conviction.” United States v. Baker, 718 F.3d 1204, 1208 (10th Cir. 2013). As
Medina recognizes, if his ostensible Rule 60(b) motion presents a new attack on his
6 Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 7
conviction, or if it seeks reconsideration of a previous attack, it is a successive claim
over which the district court lacks jurisdiction unless first authorized by this court.
See Gonzalez, 545 U.S. at 532; see also In re Cline, 531 F.3d 1249, 1251 (10th Cir.
2008) (noting that the obligation to evaluate Rule 60(b) motions as potential
unauthorized successive claims for collateral relief applies both to § 2254 and § 2255
proceedings).
Medina insists that the district court’s ruling on his ineffective-assistance
claim shows it must not have understood his affidavits. Thus, in Medina’s view, the
district court failed to address his claim on the merits. We disagree. The district
court did not specifically discuss any of Medina’s affidavits, but the order denying
§ 2255 relief shows that the court reviewed the affidavits and concluded they did not
support Medina’s ineffective-assistance claim. Whether that conclusion was error is
a question for Medina to raise, if at all, in No. 21-1300, where he seeks a COA to
appeal from the order denying § 2255 relief.
Medina further argues that the district court never considered the affidavits
from his aunt and his brother, which he attached to his motion to expand the record.
We presume this is true because the district court denied the motion to expand the
record in the same order denying § 2255 relief. Even so, Medina cites no authority—
and we are aware of none—holding that refusal to consider evidence in support of a
claim is the same as failing to rule on the claim. If the district court’s refusal was
error, again, it is a question for No. 21-1300. It is not a matter that may be properly
relitigated through Rule 60(b).
7 Appellate Case: 22-1053 Document: 010110691922 Date Filed: 06/02/2022 Page: 8
In short, Medina’s Rule 60(b) motion was, in substance, an attempt to reopen
his ineffective-assistance claim. Because we did not authorize Medina to file such a
challenge, jurists of reason could not disagree with the district court’s conclusion that
it lacked jurisdiction over the motion. Thus, we may not grant a COA. See Slack,
529 U.S. at 484.
III. CONCLUSION
We deny Medina’s application for a COA and dismiss this matter. We grant
his motion for leave to proceed without prepayment of costs or fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk