                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    July 5, 2012
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 12-6040
                                               (D.C. Nos. 5:11-CV-00897-F and
 v.                                                  5:10-CR-00071-F-1)
                                                        (W.D. Okla.)
 MICHAEL LAVORUS NELSON,

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Michael Lavorus Nelson, a federal prisoner appearing pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his 28

U.S.C § 2255 motion, asserting he should have been sentenced for a crack cocaine

offense under the Fair Sentencing Act of 2010, (FSA), Pub. L. No. 111-220, 124

Stat. 2372 (2010), in effect at his sentencing. Nelson cites two grounds for relief:


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining defendant’s brief and the appellate record, this three-
judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this appeal. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral
argument.
a violation of due process and ineffective assistance of counsel. On the

ineffective assistance of counsel claim, the district court ruled Nelson could not

establish prejudice because, even if counsel’s performance was deficient, the FSA

did not apply retroactively to Nelson’s pre-Act offense. The district court

dismissed the due process claim as procedurally barred, concluding that because

Nelson could not show his trial counsel was ineffective, no cause existed to

excuse the default.

      The Supreme Court recently held in Dorsey v. United States, Nos. 11-5683

and 11-5721, 2012 WL 2344463 (U.S. June 21, 2012), that the FSA does apply to

offenders, like Nelson, who committed a crack cocaine crime before August 3,

2010, but were not sentenced until after August 3. Because the district court’s

decision turned on a contrary interpretation of federal law which has now been

clarified, Nelson’s application for a COA is GRANTED, the judgment is

VACATED and the case is REMANDED for further consideration in light of

Dorsey. Nelson’s motion to proceed in forma pauperis is GRANTED, as is the

United States’ motion for summary disposition. The mandate shall issue

forthwith.



                                              Entered for the Court,

                                              Timothy M. Tymkovich
                                              Circuit Judge



                                        -2-
