United States v. Smith , 417 F. App'x 739 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 28, 2011
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-3135
v. (D.C. Nos. 5:09-CV-04126-RDR and
5:05-CR-40065-RDR-1)
TRACY M. SMITH, (D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HOLMES and McKAY, Circuit Judges, and PORFILIO, Senior
Circuit Judge.
Tracy M. Smith, appearing pro se, seeks a certificate of appealability
(COA) under 28 U.S.C. § 2253(c) to appeal the district court’s denial of a motion
to vacate, set aside, or correct her sentence that she filed under 28 U.S.C. § 2255.
Ms. Smith was convicted on seventeen counts related to a drug conspiracy and
sentenced to 324 months’ imprisonment. We affirmed her conviction and
sentence on direct appeal. See United States v. Smith, 534 F.3d 1211 (10th Cir.
2008). In her § 2255 motion, she raised ten claims of ineffective assistance of
counsel. The district court concluded that Ms. Smith was not entitled to relief on
any of her claims and denied the motion. The court also denied her motion for a
COA.
We afford Ms. Smith’s pro se filings a liberal construction. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Having carefully reviewed her
COA application and the record on appeal, we conclude that reasonable jurists
would not debate whether the district court erred in denying the motion as to the
issues she has numbered one through nine in her COA application. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Therefore, for substantially the same
reasons stated by the district court in its order denying the § 2255 motion, we
DENY Ms. Smith’s application for a COA on issues one through nine and
DISMISS this appeal.
In the tenth issue she raises in her COA application, Ms. Smith claims that
the Supreme Court’s decision in Bloate v. United States, 130 S. Ct. 1345 (2010),
rendered some six weeks before the district court’s order denying her § 2255
motion, casts doubt on whether her trial violated the Speedy Trial Act. She did
not formally present a Speedy-Trial-Act claim to the district court. Instead, she
alerted the district court to the pendency of Bloate in a footnote in her § 2255
motion. She now claims she did not become aware that the Supreme Court issued
a decision in Bloate until five weeks after the district court’s denial of her § 2255
motion. She therefore asks us to remand so that she can present this issue to the
district court properly or, in the alternative, to issue a COA on this claim.
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Because there is no matter to remand and no district court decision to review, we
can neither remand nor issue a COA. If Ms. Smith wishes to bring this claim, she
must seek authorization from this court to file a second or successive § 2255
motion and make the showing required by 28 U.S.C. § 2255(h).
Finally, because the district court granted Ms. Smith’s request to proceed
on appeal in forma pauperis, we DENY AS MOOT the motion to proceed IFP
that she filed in this court.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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