IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

MICHAEL A. BACON, MEMORANDUM DECISION AND ORDER DENYING CERTIFICATE Plaintiff, OF APPEALABILITY

v. Case No. 2:19-cv-00735-DN (Criminal No. 2:14-cr-00563-DN) UNITED STATES OF AMERICA, District Judge David Nuffer Defendant.

This case is on limited remand from the Tenth Circuit Court of Appeals to consider whether to issue a certificate of appealability.1 “A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.”2 “To achieve this, [the applicant] must show ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and . . . whether the district court was correct in its procedural ruling.’”3 Mr. Bacon cannot make a substantial showing of the denial of a constitutional right. His claims4 are not the appropriate subject matter of a motion under

He makes no argument demonstrating how his claims are not barred by his plea statement, in which he waived

1 Order, United States v. Bacon, no. 19-4167 (10th Cir. Dec. 10, 2019), docket no. 11, filed Dec. 10, 2019. 2

(c)(2). 3 United States v. Wicken, 514 Fed. App’x 721, 723 (10th Cir. 2013) (quoting Slack v. McDaniel,

(2000)). 4 Motion Under

to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (§ 2255 Motion”), docket no. 1, filed Oct. 3, 2019. 5 Memorandum Decision and Order of Dismissal at 5-6, docket no. 6, filed Nov. 20, 2019. his right to seek relief under § 2255 except on the issue of ineffective assistance of counsel.® And he makes no coherent argument showing the denial of a constitutional right. Moreover, jurisdiction over Mr. Bacon’s § 2255 Motion was lacking because the § 2255 Motion was his second attempt to obtain relief from his sentence under § 2255, and he did not obtain prior authorization for the filing from a panel of the Tenth Circuit Court of Appeal.’ Mr. Bacon also did not assert newly discovered evidence or a new rule of constitutional law, which is required to obtain such authorization.® No reasonable jurist would find the dismissal of Mr. Bacon’s § 2255 Motion for lack of jurisdiction debatable. Therefore, IT IS HEREBY ORDERED that Mr. Bacon is denied a certificate of appealability. Signed December 12, 2019. BY THE COURT ha) : Tana Math United States District Judge

6 Id. at 6. at 4-5. 8 Td. at 6.