                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 12, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-1350
       v.                                               (D. Colorado)
 EVER ENRIQUE CAICEDO,                         (D.C. Nos. 1:91-CR-00355-LTB
                                                  and 1:08-CV-01853-LTB)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      Ever Enrique Caicedo was sentenced in the United States District Court for

the District of Colorado in 1992 on a guilty plea to possession with intent to

distribute cocaine. See 21 U.S.C. § 841(a)(1), (b)(1)(A). His sentence was

reduced in 1993. In 1998 jurisdiction over his case was transferred to the

Southern District of Texas. See 18 U.S.C. § 3605. On August 29, 2008,

Mr. Caicedo moved for relief under 28 U.S.C. § 2255 in the District of Colorado.

The district court ruled that to the extent that Mr. Caicedo was challenging

actions taken before transfer of his case to Texas, his claims were untimely. See

28 U.S.C. § 2255(f). And to the extent that his claims related to actions after

transfer of his case, he needed to pursue relief in the Southern District of Texas.

The court therefore denied his motion. Mr. Caicedo has applied to this court for a
certificate of appealability (COA) to enable him to appeal the denial. See 28

U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 relief).

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [motion] should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). If the motion was denied on

procedural grounds, as it was in this case, the applicant faces a double hurdle.

Not only must the applicant make a substantial showing of the denial of a

constitutional right, but he must also show “that jurists of reason would find it

debatable . . . whether the district court was correct in its procedural ruling.” Id.

      For the reasons stated by the district court, Mr. Caicedo was clearly not

entitled to relief. We DENY a COA and DISMISS his appeal. We GRANT his

motion for leave to proceed in forma pauperis.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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