*

This order is not binding precedent except under the doctrines of law of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

January 16, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 08-4180

v. (D. Utah)

DARRELL EUGENE WASHINGTON,

Defendant - Appellant.

(D.C. No. 1:07-CV-00003-DB)

ORDER DENYING

CERTIFICATE OF APPEALABILITY*

Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

Darrell Eugene Washington was found guilty, following a jury trial, of

possession with intent to distribute crack cocaine and possession of ammunition
-2-

as a convicted felon, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 922(g)(1), respectively. This court affirmed Washington’s conviction and

sentence. United States v. Washington, 157 Fed. Appx. 43, 2005 WL 3257511

(10th Cir. 2005).

Washington, proceeding pro se, then filed a 28 U.S.C. § 2255 motion,

arguing that he received ineffective assistance of counsel because his trial counsel

failed to make a particular argument. The district court concluded that the

argument would not have been meritorious if made, and denied Washington’s

§ 2255 motion. Washington did not appeal that decision. He then filed a motion

to vacate the prior judgment, which the district court construed as a Fed. R. Civ.

P. 60(b) motion. Washington argued that, because of actions inside the Bureau of

Prisons, he never received the court’s order denying his § 2255 motion and he

therefore lost his right to appeal.

The district court granted the motion, vacated its earlier decision, and

reinstated its order denying the § 2255 motion. The district court did not grant or

deny a certificate of appealability (“COA”). Accordingly, Washington has filed a

motion for a COA as well as a pro se appellate brief. We, therefore, must first

address whether to grant Washington a COA to enable him to appeal the district

court’s denial of his § 2255 motion.

In order to obtain a COA, a petition must make a “substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable
-3-

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). In

addressing this question we review Washington’s pro se filings with special

solicitude. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). 

Even according Washington’s materials such a solicitous construction, we

conclude, based upon our own review of the record, and for substantially the same

reasons given by the district court, that no reasonable jurist could debate the

correctness of the district court’s ruling. Washington’s request for a COA is

therefore denied and this appeal is dismissed.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge