Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Shawn Gieswein sought a certificate of appealability to appeal from the district court’s determination his motion under Rule 60(b)(6) of the Federal Rules of Civil Procedure was actually an unauthorized second or successive 28 U.S. Code 2255 motion that it lacked jurisdiction to consider. Gieswein filed an application for a certificate of appealability. The 10th Circuit Court of Appeals out of Oklahoma City, Oklahoma, denied a certificate of appealability and dismissed the appeal.
Gieswein was convicted in 2007 of being a felon in possession of a firearm and witness tampering. He was sentenced to 240 months in prison, which reflected an enhanced sentence under the Armed Career Criminal Act. The 10th Circuit affirmed his conviction and sentence on direct appeal. Gieswein filed his first 2255 motion in 2011. The district court denied the motion. The 10th Circuit granted a certificate of appealability, but ultimately affirmed the district court’s denial of relief, the opinion noted. In 2016, Gieswein was resentenced without the enhancement following the U.S. Supreme Court’s decision in Johnson v. United States. The district court imposed the same 240-month term of imprisonment and the 10th Circuit affirmed. Gieswein has since filed numerous unsuccessful post-judgment motions attempting to collaterally attack his conviction and sentence, the opinion added.
Gieswein filed a Rule 60(b)(6) motion arguing the U.S. Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, rendered his 2007 conviction unconstitutional. The district court found Gieswein’s motion was actually a second or successive motion under 2255 and therefore dismissed the motion for lack of jurisdiction because Gieswein hadn’t obtained an order from the 10th Circuit authorizing the district court to consider the motion.
To obtain a certificate of appealability, Gieswein must show “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling” the opinion noted, citing the decision Slack v. McDaniel. “It is the relief sought, not his pleading’s title, that determines whether the pleading is a § 2255 motion,” citing the decision United States v. Nelson. Gieswein’s motion argued a change in substantive law justified relief from his conviction. In those circumstances, such a motion should be treated as a second or successive 2255 motion, the opinion added, citing the decision United States v. Baker. According to the 10th Circuit, the district court was correct in its procedural ruling that Gieswein’s Rule 60(b)(6) motion was actually a successive motion under 2255.
The 10th Circuit denied a certificate of appealability, dismissed this matter and granted Gieswein’s motion for leave to proceed in forma pauperis