                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       January 18, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                         No. 05-2097
v.                                                (District of New Mexico)
                                              (D.C. No. CIV-05-171 WPJ/LCS)
ANTONIUS MARIA HEIJNEN,

       Defendant-Appellant.




                                     ORDER


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.


      On February 16, 2005, Antonius Maria Heijnen filed an application for writ

of habeas corpus in the United States District Court for the District of New

Mexico. Heijnen was convicted of conspiracy and wire fraud and sentenced in

the United States District Court for the District of South Carolina. He is currently

incarcerated in New Mexico. In his application, Heijnen raised several

constitutional claims relating to his conviction and sentence. The district court

rejected Heijnen’s pro se characterization of his application as one filed pursuant

to 28 U.S.C. § 2242, concluding it was a 28 U.S.C. § 2255 motion because it

challenged the validity of Heijnen’s conviction and sentence. Accordingly, the
court dismissed the application without prejudice and instructed HEIJNEN that it

must be filed with the district court in South Carolina. See 28 U.S.C. § 2255.

(“A prisoner in custody under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United States . . . may move the

court which imposed the sentence to vacate, set aside or correct the sentence.”

(emphasis added)).

      HEIJNEN seeks to appeal the district court’s dismissal of his application.

Because our review of the record demonstrates that the district court properly

characterized Heijnen’s application as a § 2255 motion, HEIJNEN cannot pursue

an appeal until he obtains a certificate of appealability (“COA”). See 28 U.S.C. §

2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255

motion unless the movant first obtains a COA). To be entitled to a COA,

HEIJNEN must show “that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

474, 484-85 (2000) (holding that when a district court dismisses a habeas petition

on procedural grounds, a petitioner is entitled to a COA only if he shows both that

reasonable jurists would find it debatable whether he had stated a valid

constitutional claim and debatable whether the district court’s procedural ruling

was correct). We conclude the district court’s dismissal of Heijnen’s application


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is not deserving of further proceedings or subject to a different resolution on

appeal. Accordingly, this court denies HEIJNEN a COA and dismisses this

appeal. Heijnen’s motion to proceed in forma pauperis on appeal is granted.

                                       Entered for the Court
                                       CLERK, COURT OF APPEALS


                                       By
                                               Deputy Clerk




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