United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
matter is before the court following a limited remand by the
Tenth Circuit for consideration of two issues. First, the
court addresses the extent of the certificate of
appealability as to the issues presented by
petitioner-defendant's appeal of the court's Order of
November 13, 2017. Second, the court considers whether
Garcia's Motion to Alter and Amend filed with the court
on December 21, 2017 is timely.
certificate of appealability may issue if the applicant has
made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). To satisfy this standard,
the movant must demonstrate that “reasonable jurists
would find the district court's assessment of the
constitutional claims debatable or wrong.” Saiz v.
Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting
Tennard v. Dretke, 542 U.S. 274, 282 (2004)). A
certificate is appropriate if “jurists of reason could
disagree with the district court's resolution of his
constitutional claims or ... jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003).
prior order, the court rejected the petitioner's
contentions (1) that the government committed misconduct, (2)
that his sentence was illegal under Johnson v. United
States, 135 S.Ct. 2551 (2015), (3) that the statutes of
conviction were unconstitutional, (4) that he was denied
access to the courts, and (5) that his counsel was
ineffective. (Dkt. 1270). The court's order of December
19, 2017 referenced the controlling law regarding
certificates of appealability and concluded that
“defendat has met this standard, ” but did not
specify the issue for which the certificate was granted.
court has reviewed the history of the action and
defendant's arguments, and hereby clarifies that a
certificate of appealability is warranted as to the
defendant's contention that the court's murder
instruction was erroneous under Johnson. While
Johnson addressed the residual clause of 18 U.S.C.
§ 924(e)(2)(B)(ii), the defendant may present a
debatable claim as to whether murder as charged in the case
represents a crime of violence. Given the difficulty courts
have experienced in defining the concept of violence, the
court finds that reasonable jurists might consider the issue
as debatable. No certificate of appealability is issued as to
Garcia's remaining issues, which were the subject of
manifest procedural default and an underlying lack of merit,
or, in the case of the claim of ineffective assistance of
counsel, reflect an attempt to reargue tactical decisions by
trial counsel which present no substantial basis for
concluding defendant's constitutional rights were
the court determines that the Motion to Alter or Amend (Dkt.
1283) was not timely filed under Fed.R.Civ.P. 59(e) and
Fed.R.App.P. 4(a)(4)(A)(iv). The deadline for filing a Rule
59(e) motion is 28 days after entry of the judgment.
Fed.R.Civ.P. 59(e). Garcia's motion was filed 38 days
after the court denied the Motion to Vacate. (Dkt. 1270).
prisoner, Garcia is given the protection of
the“prisoner mailbox rule, ”which deems the
filing date of a motion as the date that he gave his document
to prison authorities for filing. Price v. Philpot,
420 F.3d 1158, 1163-64 (10th Cir. 2005). A prisoner seeking
the protection of the rule “must set forth the date of
deposit and state that first-class postage has been
paid.” United States v. Jack, 630 F. App'x
858, 861 (10th Cir. 2015) (quoting Rule 3 of the Rules
Governing Section 2255 Proceedings for the United States
District Courts). The rule requires that the petitioner
“attest that ... a timely filing was made.”
Price, 420 F.3d at 1165 (citing United States v.
Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir.),
cert. denied, 543 U.S. 1005 (2004)) (emphasis
added). See also United States v. Jack, 667 F.
App'x 689 (Mem.), 2016 WL 3548360 (10th Cir. June 28,
2016) (prisoner's statement must indicate prepaid postage
and “set forth the date of deposit”). The
attestation must be made by “a declaration in
compliance with 28 U.S.C. § 1746 or by a notarized
statement.” Section 2255 Proceedings, Rule 3.
defendant represents that the Motion was submitted
“postage-prepaid, ” but there is no certification
of use any institutional mail system with a tracking system
which might confirm the date of mailing, nor is there any
certification of the time of the “date of the
deposit” with the prison authorities. With respect to
the prison mailbox rule, the petitioner prisoner "has
the burden of proof on this issue." Price, 420
F.3d at 1165. A prisoner's “bald assertion that he
gave his original Rule 59(e) motion to prison authorities
within the filing period does not meet the stringent
requirements of Ceballos-Martinez and
Price.” Brown v. McKune, 162 F.
App'x 795, 797 (10th Cir. 2006). Here, Garcia fails to
make any representation by attestation or notarized statement