                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                            FOR THE TENTH CIRCUIT                              March 30, 2020
                        _________________________________
                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 19-4167
                                                     (D.C. Nos. 2:19-CV-00735-DN &
 MICHAEL A. BACON,                                        2:14-CR-00563-DN-1)
                                                                 (D. Utah)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY ∗
                   _________________________________

Before LUCERO, BACHARACH, and McHUGH, Circuit Judges.
                  _________________________________

       Michael A. Bacon, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s order dismissing his motion under

28 U.S.C. § 2255 to vacate, set aside, or correct his sentence as second or successive,

filed without authorization from this court. We deny a COA and dismiss the matter.

       In 2015, Bacon pleaded guilty pursuant to a plea agreement to two counts of bank

robbery and one count of credit union robbery. At the plea hearing, Bacon asked that a

sealed plea supplement not be filed on the docket. The court denied the request as




       ∗
         This order is not binding precedent except under the doctrines of law of the case,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.
inconsistent with a court-wide policy. Bacon was sentenced to 80 months’ imprisonment

and 60 months of supervised release.

       Less than a year later, Bacon filed his first § 2255 motion. Bacon argued that his

conviction and sentence should be set aside on the grounds of prosecutorial misconduct

and ineffective assistance of counsel. His ineffective assistance claim included an

argument that counsel was ineffective for failing to get the sealed plea supplement

removed from the docket. Bacon also argued that his 60-month term of supervised

release exceeded the maximum term allowed by statute and should be reduced. The

district court denied Bacon’s prosecutorial misconduct claim and dismissed it with

prejudice because he waived the right to seek collateral review on this ground in the plea

agreement. The court also denied the ineffective assistance claim on the merits and

dismissed it with prejudice. The court, however, granted Bacon’s claim regarding the

term of supervised release, and reduced the term to 36 months. Bacon’s subsequent

appeal was dismissed for failure to prosecute.

       Within a year of resentencing, Bacon filed a second motion under § 2255 in which

he reasserted claims relating to the sealed plea supplement. Separately, he raised a claim

that he was entitled to credit for time served. The district court dismissed the motion for

lack of jurisdiction as an unauthorized second or successive motion and denied a COA.

Bacon cannot appeal without first obtaining a COA from this court. See 28 U.S.C.

§ 2253(c).

       Because the district court dismissed the motion on procedural grounds, to obtain a

COA, Bacon must show both “that jurists or reason would find it debatable whether the

                                             2
[motion] states a valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).

       In his application for a COA, Bacon does not explain why the district court’s

procedural ruling was wrong; instead, he repeats his objections concerning the sealed

plea agreement and attacks the court, the prosecutors, and his own counsel for failing to

remove it from the docket. Setting aside whether Bacon’s claims are even the proper

subject of a § 2255 motion or raise any debatable claims of the denial of a constitutional

right, he must also show that the court’s procedural ruling is debatable, which he has not

done. We therefore deny a COA and dismiss the matter. We also deny Bacon’s request

to proceed on appeal without prepayment of costs or fees.


                                               Entered for the Court



                                               CHRISTOPHER M. WOLPERT, Clerk




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