UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

MICHAEL A. BACON, 

 Defendant - Appellant.

No. 19-4167

(D.C. Nos. 2:19-CV-00735-DN &

2:14-CR-00563-DN-1)

(D. Utah)

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ORDER DENYING CERTIFICATE OF APPEALABILITY∗

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Before LUCERO, BACHARACH, and McHUGH, Circuit Judges.

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Michael A. Bacon, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (COA) to appeal the district court’s order dismissing his motion under 

28 U.S.C. § 2255 to vacate, set aside, or correct his sentence as second or successive, 

filed without authorization from this court. We deny a COA and dismiss the matter. 

In 2015, Bacon pleaded guilty pursuant to a plea agreement to two counts of bank 

robbery and one count of credit union robbery. At the plea hearing, Bacon asked that a 

sealed plea supplement not be filed on the docket. The court denied the request as 

 ∗ This order is not binding precedent except under the doctrines of law of the case, 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

March 30, 2020

Christopher M. Wolpert

Clerk of Court
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inconsistent with a court-wide policy. Bacon was sentenced to 80 months’ imprisonment 

and 60 months of supervised release. 

Less than a year later, Bacon filed his first § 2255 motion. Bacon argued that his 

conviction and sentence should be set aside on the grounds of prosecutorial misconduct

and ineffective assistance of counsel. His ineffective assistance claim included an 

argument that counsel was ineffective for failing to get the sealed plea supplement 

removed from the docket. Bacon also argued that his 60-month term of supervised 

release exceeded the maximum term allowed by statute and should be reduced. The 

district court denied Bacon’s prosecutorial misconduct claim and dismissed it with 

prejudice because he waived the right to seek collateral review on this ground in the plea 

agreement. The court also denied the ineffective assistance claim on the merits and 

dismissed it with prejudice. The court, however, granted Bacon’s claim regarding the 

term of supervised release, and reduced the term to 36 months. Bacon’s subsequent

appeal was dismissed for failure to prosecute.

Within a year of resentencing, Bacon filed a second motion under § 2255 in which 

he reasserted claims relating to the sealed plea supplement. Separately, he raised a claim 

that he was entitled to credit for time served. The district court dismissed the motion for 

lack of jurisdiction as an unauthorized second or successive motion and denied a COA. 

Bacon cannot appeal without first obtaining a COA from this court. See 28 U.S.C. 

§ 2253(c). 

Because the district court dismissed the motion on procedural grounds, to obtain a 

COA, Bacon must show both “that jurists or reason would find it debatable whether the 
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[motion] 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) (emphasis added). 

In his application for a COA, Bacon does not explain why the district court’s 

procedural ruling was wrong; instead, he repeats his objections concerning the sealed 

plea agreement and attacks the court, the prosecutors, and his own counsel for failing to 

remove it from the docket. Setting aside whether Bacon’s claims are even the proper 

subject of a § 2255 motion or raise any debatable claims of the denial of a constitutional 

right, he must also show that the court’s procedural ruling is debatable, which he has not 

done. We therefore deny a COA and dismiss the matter. We also deny Bacon’s request 

to proceed on appeal without prepayment of costs or fees. 

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk