Opinion
No. 08-1410.
February 27, 2009.
Appeal from the United States District Court for the District of Colorado.
Gregory E. Goldberg, Holland Hart, LLP, James C. Murphy, Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.
Gary D. DeWilliams, Littleton, CO, pro se.
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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.
Gary D. DeWilliams was found guilty of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, this court vacated his conviction and remanded for a new trial because his attorney had stipulated to an element of the crime without Mr. DeWilliams's consent. United States v. DeWilliams, 28 Fed.Appx. 913 (10th Cir. 2001). Following remand, Mr. DeWilliams was again found guilty, and was sentenced to a term of imprisonment of 293 months. This court affirmed his conviction and sentence on appeal. United States v. DeWilliams, 85 Fed.Appx. 154 (10th Cir. 2004). Mr. DeWilliams then filed the instant collateral challenge to his confinement pursuant to 28 U.S.C. § 2255. In an extensively reasoned opinion, the district court denied relief and Mr. DeWilliams's request for a certificate of appealability ("COA").
Mr. DeWilliams now seeks a COA from us to enable him to appeal the district court's denial of his § 2255 motion. In order to secure a COA, a petitioner must make a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), such that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). In assessing this question, we review Mr. DeWilliams's pro se filings with special solicitude. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007).
Even when viewed through this lens, however, to the extent that Mr. DeWilliams seeks to challenge the district court's disposition of his § 2255 motion, we conclude based on our review of the record, and for substantially the same reasons given by the district court in its thoughtful opinion, that no reasonable jurist could debate the correctness of that court's rulings. To the extent Mr. DeWilliams seeks to raise new issues on appeal that were not presented to the district court, we decline to consider them. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004) (court of appeals may decline to consider novel argument in application for COA not presented first to the district court). Mr. DeWilliams's request for COA is therefore denied and this appeal is dismissed. We further deny his application to proceed in forma pauperis.