IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Christine M. Arguello

Criminal Action No. 11-cr-00406-CMA-1

UNITED STATES OF AMERICA,

Plaintiff,

v.

MANUEL SANTISTEVAN,

Defendant.

ORDER DENYING MOTION FOR RECONSIDERATION

This Matter is before the Court on Defendant’s Motion for Reconsideration (Doc. 

# 460) of the Court’s Order (Doc. # 448) denying his motion to vacate his sentence. The 

Motion is denied for the following reasons.

I. BACKGROUND

Defendant was tried and convicted of aggravated sexual abuse of a federal 

prisoner, (Doc. # 231), and he was sentenced to 262 months in the custody of the 

Bureau of Prisons. (Doc. # 366). Defendant appealed, and the Tenth Circuit Court of 

Appeals affirmed the judgment and sentence. (Doc. # 432). Defendant then filed a 

motion to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. § 

2255, asserting that his attorney provided ineffective assistance of counsel. (Doc. # 

435). This Court denied Defendant’s § 2255 motion in a written order. (Doc. # 448). 

Defendant now asks the Court to reconsider that order. (Doc. # 460).

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II. DISCUSSION

Defendant characterizes his Motion as a “Motion for Reconsideration.” (Doc. # 

460, p. 1). However, before it can consider the merits of the Motion, the Court must 

determine whether the Motion is a “true” motion for reconsideration, or whether it is 

merely a second § 2255 motion. The distinction is important because federal law 

“restrict[s] the power of the federal courts to entertain second or successive 

applications” for relief under 28 U.S.C. § 2255. Spitznas v. Boone, 464 F. 3d 1213, 1215 

(10th Cir. 2006). “Before a federal prisoner may file a second or successive motion 

under § 2255, the prisoner must first obtain an order from the appropriate court of 

appeals authorizing the district court to consider the motion.” In re Cline, 531 F. 3d 

1249, 1250 (10th Cir. 2008) (citing 28 U.S.C. §§ 2244(b)(3)(A), 2255(h)). A district court 

does not have jurisdiction to address the merits of a second § 2255 motion until the 

appropriate court of appeals has granted the required authorization. Id. at 1251.

A motion is a “true” motion for reconsideration only if it challenges (1) a 

procedural ruling that precluded a determination of the original § 2255 motion on the 

merits; or (2) a defect in the integrity of the § 2255 proceedings. Spitznas, 464 F. 3d at 

1215-16; see also United States v. Garcia, 2016 WL 106487 at *2 (D. Colo. January 11, 

2016). By contrast, if a motion merely reasserts the same claims that the court 

previously rejected, it must be deemed a second or successive § 2255 motion. Garcia, 

2016 WL 106487 at *2.

It is clear from the text of the Motion that Defendant’s “Motion for 

Reconsideration” is, in fact, a second § 2255 Motion. Defendant’s Motion does not 

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allege any procedural error or other defect in the earlier § 2255 proceedings. Rather, he 

simply reasserts many of the same substantive arguments that he asserted in his fist § 

2255 Motion. (Compare Doc. # 435 and Doc. # 460). Therefore, his Motion must be 

construed as a second § 2255 Motion.

Defendant has not obtained the necessary authorization from the Tenth Circuit to 

file a second § 2255 motion. Therefore, the Court must either dismiss the § 2255 motion 

for lack of jurisdiction or, if it is “in the interest of justice,” transfer the matter to the Tenth 

Circuit pursuant to 28 U.S.C. § 1631. In re Cline, 531 F.3d at 1252. 

To determine whether transfer to the Tenth Circuit would be “in the interest of 

justice,” the Court must consider a number of factors, including “whether the claims 

would be time barred if filed anew in the proper forum, whether the claims alleged are 

likely to have merit, and whether the claims were filed in good faith.” Id. at 1251. The 

Court has considered each of these factors and concludes that they favor dismissal 

rather than transfer.

The second factor, in particular – likelihood that the claims have merit – militates 

against transfer. Under Section 2255(h), a federal prisoner seeking to file a second § 

2255 motion must demonstrate that the motion is based on (1) newly discovered 

evidence, § 2255(h)(1); or (2) “a new rule of constitutional law, made retroactive to 

cases on collateral review by the Supreme Court, that was previously unavailable,” § 

2255(h)(2). Defendant has not made either showing. Therefore, the claims in 

Defendant’s Motion are not “likely to have merit.” See In re Cline, 531 F.3d at 1252. 

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Thus, transfer would not be “in the interest of justice,” and the § 2255 motion will be 

dismissed for lack of jurisdiction.

Under Rule 11(a) of the Rules Governing Section 2255 Proceedings for the 

United States District Courts, a “district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant.” Under 28 U.S.C. § 

2253(c)(2), the Court may issue a certificate of appealability “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Such a showing is 

made only when “a prisoner demonstrates ‘that jurists of reason would find it debatable’ 

that a constitutional violation occurred, and that the district court erred in its resolution.” 

U.S. v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 

473, 484 (2000)). The Court denies a certificate of appealability because Defendant has 

not made a substantial showing of the denial of a constitutional right.

The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from 

this order would not be taken in good faith and therefore in forma pauperis status will be 

denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). 

If Defendant files a notice of appeal he also must pay the appellate filing fee or file a 

motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth 

Circuit within 30 days in accordance with Fed. R. App. P. 24. 

I. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Reconsideration (Doc. # 460) 

is DISMISSED for lack of jurisdiction. Further, under 28 U.S.C. § 2253(c)(2) and Rule 

11 of the Rules Governing Section 2255 Proceedings for the United States District 

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Courts, a certificate of appealability is DENIED. And finally, leave to proceed in forma 

pauperis on appeal is DENIED without prejudice. Defendant may file of a motion 

seeking leave to proceed in forma pauperis on appeal in the United States Court of 

Appeals for the Tenth Circuit.

DATED: November 25,2020

BY THE COURT:

_____________________________

CHRISTINE M. ARGUELLO

United States District Judge

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