*

 This order is not binding precedent except under the doctrines of law of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

May 25, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TAE H. CHON,

Defendant-Appellant.

No. 10-4226

(D.C. Nos. 2:09-CV-00654-TS and

2:01-CR-00487-TS-1)

(D. Utah)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, EBEL, and GORSUCH, Circuit Judges.

A jury convicted Tae Chon of possessing pseudoephedrine while knowing,

or having reasonable cause to believe, it would be used to manufacture

methamphetamine. See 21 U.S.C. § 841(c)(2). On direct appeal, this court

affirmed. United States v. Chon, 291 F. App’x 877, 883 (10th Cir. 2008)

(unpublished). Mr. Chon then filed a collateral challenge under 28 U.S.C.

§ 2255, seeking relief on approximately 20 grounds. The district court issued a

memorandum opinion considering these claims and ultimately denying relief. 
- 2 -

In response to that ruling, Mr. Chon sought reconsideration under Fed. R.

Civ. P. 59. The district court found Mr. Chon’s Rule 59 motion to be a “mixed”

motion. To the extent that the motion was a “true” Rule 59 motion seeking to

raise grounds for reconsideration, the district court held that it failed on the

merits. To the extent that the motion really amounted to an attempt to argue new

grounds for relief and thus amounted to a second § 2255 motion, the district court

dismissed it for lack of jurisdiction, noting that before such a motion can be filed

in a district court it must be authorized by this court.

Mr. Chon now seeks from this court a certificate of appealability (COA) to

contest the district court’s § 2255 and Rule 59 rulings. Generally we may grant

COA only if an applicant makes a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, an applicant

must show “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.” 

United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (internal quotation

omitted). Because Mr. Chon proceeds in this court pro se, we review his

pleadings with special solicitude.

Even so, we cannot grant a COA in this case. Before us, Mr. Chon first

complains that the district court failed to docket his reply brief in support of his

§ 2255 motion in a timely manner. But the district court docket reveals that the
- 3 -

brief was filed with the court over a month before it issued its decision on the

§ 2255 motion; accordingly, there is no support for Mr. Chon’s allegation that the

district court was unable to consider all of his briefing before denying his § 2255

motion. Second, Mr. Chon argues his conviction and sentence should be

overturned because of prosecutorial misconduct and ineffective assistance of

counsel. But the district court amply explained why these arguments are

unavailing. Third, Mr. Chon disputes the resolution of his Rule 59(e) motion, but

here again our review reveals no reasonably debatable error in the district court’s

decision. Neither must a district court rule on a COA application, as Mr. Chon’s

COA application to this court suggests. If a district court does not expressly

grant a COA, the request is deemed denied — though, of course, a COA

application may be renewed in this court without prejudice flowing from its

earlier denial in the district court. See United States v. Kennedy, 225 F.3d 1187,

1193 n.3 (10th Cir. 2000). Indeed, this very matter comes to us in exactly that

posture.

The application for COA and motion to proceed in forma pauperis are

denied and this appeal is dismissed.

ENTERED FOR THE COURT

Neil M. Gorsuch

Circuit Judge