                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 27, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                         No. 11-4105
                                                          (D. Utah)
        v.
                                             (D.C. Nos. 2:10-CV-00170-DAK and
                                                   1:06-CR-00024-PGC-1)
STEVEN J. KELLY,

               Defendant - Appellant.


                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.


        Petitioner, Steven J. Kelly, seeks a certificate of appealability (“COA”) so

he can appeal the district court’s dismissal of the motion to vacate, set aside, or

correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

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

motion unless he first obtains a COA). In 2005, Kelly was convicted of two drug-

trafficking offenses. United States v. Kelly, 535 F.3d 1229, 1231 (10th Cir.

2008). Kelly’s conviction was affirmed by this court on August 5, 2008. Id. at

1243.

        Kelly filed the instant § 2255 motion in federal district court on February

24, 2010, raising two ineffective assistance of counsel claims. The first was a
general claim that trial counsel failed to present an adequate defense. The second

claim alleged trial counsel was ineffective for failing to challenge the calculation

of Kelly’s criminal history category. On February 24, 2011, Kelly sought to

amend his § 2255 motion to add a claim that his trial counsel was ineffective for

failing to seek dismissal of the indictment because of a violation of the Speedy

Trial Act. See 18 U.S.C. § 3161.

      The district court concluded Kelly’s conclusory allegations were

insufficient to support his general ineffective assistance claim. United States v.

Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). The court also concluded Kelly

could not show prejudice resulting from his attorney’s alleged deficient

performance at sentencing. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th

Cir. 1998) (holding a court may address Strickland’s performance and prejudice

prongs “in any order, but need not address both if [movant] fails to make a

sufficient showing of one”). Finally, the court concluded Kelly’s Speedy Trial

Act claim was untimely because he attempted to assert it more than one year after

his conviction became final. 1 See 28 U.S.C. § 2255(f) (setting forth a one-year

      1
        Once the district court concluded Kelly’s untimely amendment to his
§ 2255 motion did not relate back to the date of the original motion, the court
lacked jurisdiction to consider the merits of Kelly’s Speedy Trial Act claim. See
United States v. Espinoza-Saena, 235 F.3d 501, 503 (10th Cir. 2000) (affirming
the treatment of an untimely amendment to a § 2255 motion as a second or
successive habeas petition); United States v. Nelson, 465 F.3d 1145, 1148-49
(10th Cir. 2006) (“[I]f the prisoner’s pleading must be treated as a second or
successive § 2255 motion, the district court does not even have jurisdiction to
                                                                       (continued...)

                                         -2-
statute of limitations for § 2255 motions); United States v. Espinoza-Saenz, 235

F.3d 501, 505 (10th Cir. 2000) (holding an untimely amendment to a § 2255

motion does not relate back to the date of the original motion if it seeks to add a

new claim). Accordingly, the district court denied Kelly’s § 2255 motion.

      To be entitled to a COA, Kelly must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted); see also 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). In evaluating whether

      1
        (...continued)
deny the relief sought in the pleading.”). In an abundance of caution, we construe
Kelly’s request for a COA on the Speedy Trial Act claim as an application for
authorization to file a second or successive § 2255 motion. See Pease v. Klinger,
115 F.3d 763, 764 (10th Cir. 1997). Our review of Kelly’s implied application
leads us to conclude he has failed to make the prima facie showing necessary for
filing a second or successive § 2255 motion because the claim does not involve
either newly discovered evidence or a previously unavailable, new rule of
constitutional law made retroactive to cases on collateral review by the Supreme
Court. See 28 U.S.C. § 2255(h). Accordingly, we deny Kelly’s implied
application to file a second or successive § 2255 motion.

                                         -3-
Kelly has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El, 537 U.S. at 338. Although Kelly need not demonstrate his

appeal will succeed to be entitled to a COA, he must “prove something more than

the absence of frivolity or the existence of mere good faith.” Id. (quotations

omitted).

      This court has reviewed Kelly’s appellate brief and application for COA,

the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes Kelly is not

entitled to a COA. Accordingly, we deny his request for a COA and dismiss this

appeal. Kelly’s request to proceed in forma pauperis on appeal is granted.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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