UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

GARY DEWILLIAMS, 

 Defendant-Appellant. 

No. 13-1370 

(D.C. Nos. 1:12-CV-02347-CMA & 

1:88-CR-00064-CMA-1) 

(D. Colo.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before BRISCOE, Chief Judge, BACHARACH and PHILLIPS, Circuit Judges. 

 

 Gary deWilliams, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (COA) to appeal the dismissal of his “Motion for Relief from a Void 

Judgment Pursuant to Federal Rules of Civil Procedure Rule 60(b)(4),” which the 

district court construed as an unauthorized successive 28 U.S.C. § 2255 motion. 

See 28 U.S.C. § 2255(h). We deny a COA and dismiss this matter. 

 In 1988, Mr. deWilliams pleaded guilty to bank robbery and making a false 

statement. Three weeks after sentencing him, the district court entered an order 

clarifying the judgment, specifying that the sentence was a pre-Guidelines sentence. 

 

* This order is not binding precedent except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 10, 2014

Elisabeth A. Shumaker 

Clerk of Court
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In 2005, Mr. deWilliams filed a § 2255 motion, which the district court denied as 

time-barred. See United States v. deWilliams, 178 F. App’x 819, 820 (10th Cir. 

2006). Since then, he has filed numerous unsuccessful challenges to his 1988 

pre-Guidelines sentence. See In re deWilliams, No. 11-1575, at 2-4 (10th Cir. 

Jan. 26, 2012) (unpublished order) (summarizing filings). 

 To appeal the district court’s dismissal of his “Motion for Relief from a Void 

Judgment,” Mr. deWilliams must secure a COA. To do so, he 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 that jurists of reason would find it debatable 

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 

529 U.S. 473, 484 (2000). 

 Regarding the procedural aspect of the Slack test, Mr. deWilliams asserts that 

his “Motion for Relief from a Void Judgment” addressed the district court’s 

timeliness decision in the 2005 proceeding. Therefore, he argues, it was not a 

successive § 2255 motion because it attacked the integrity of the prior § 2255 

proceeding rather than the validity of his sentence. See Gonzalez v. Crosby, 

545 U.S. 524, 532-33 & n.4 (2005) (stating that a prisoner is not stating a claim for 

habeas relief that invokes the restrictions on successive applications when “he merely 

asserts that a previous ruling which precluded a merits determination was in error—

for example, a denial for . . . [a] statute-of limitations bar”); Spitznas v. Boone, 
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464 F.3d 1213, 1216 (10th Cir. 2006) (same); see also United States v. Nelson, 

465 F.3d 1145, 1147 (10th Cir. 2006) (applying Gonzalez to a § 2255 motion). 

 The “Motion for Relief from a Void Judgment,” however, says nothing about 

the 2005 § 2255 proceeding. It is quite clear that the goal of this filing was to vacate 

the underlying 1988 sentence. Accordingly, no reasonable jurist would find it 

debatable whether the district court was correct in dismissing the “Motion for Relief 

from a Void Judgment” as an unauthorized successive § 2255 motion. See In re 

Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008) (per curiam). 

 Giving Mr. deWilliams the benefit of liberal construction, we acknowledge 

that in other materials he filed in the district court in conjunction with his “Motion 

for Relief from a Void Judgment,” he did refer to the district court’s 2005 ruling. 

But even if he could satisfy the procedural aspect of the Slack test, he cannot satisfy 

the constitutional aspect. Reasonable jurists would not find it debatable whether the 

“Motion for Relief from a Void Judgment” states a valid claim of the denial of a 

constitutional right. Because Mr. deWilliams already has pursued relief under 

§ 2255, any new motion for relief from his 1988 sentence is successive and requires 

authorization under § 2255(h). See United States v. deWilliams, 299 F. App’x 801, 

803 (10th Cir. 2008) (instructing Mr. deWilliams on the procedure for filing a second 

or successive § 2255 motion). The “Motion for Relief from a Void Judgment” 

identifies no new Supreme Court decision or new evidence that would support 

authorization. Moreover, more than once, this court already has denied 
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Mr. deWilliams authorization to file § 2255 claims challenging his pre-Guidelines 

sentence. See In re deWilliams, No. 11-1575, at 5-6; DeWilliams v. Davis, 

369 F. App’x 912, 914 (10th Cir. 2010). No further proceedings are warranted. 

 Mr. deWilliams’ motion for leave to proceed without prepayment of fees and 

costs is granted. The application for COA is denied and this matter is dismissed. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk