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    Monterial Wesley was convicted in federal district court of conspiracy to manufacture and possess cocaine and cocaine base with intent to distribute, and use of a telephone to facilitate a drug transaction. After unsuccessfully seeking to vacate his sentence under 28 U.S.C. § 2255, Wesley appealed. The appellate court found that Wesley did not raise any of the issues in his current appeal - that his sentence was based on clearly erroneous facts, the district court usurped the role of the jury, and the prosecution's evidence lacked reliability - in his original § 2255 motion. As Wesley presented these arguments for the first time on appeal, the court concluded it could not consider them to issue a certificate of appealability.

    Original Description:

    Filed: 2013-09-23 Precedential Status: Non-Precedential Docket: 13-3149

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    Monterial Wesley was convicted in federal district court of conspiracy to manufacture and possess cocaine and cocaine base with intent to distribute, and use of a telephone to facilitate a drug transaction. After unsuccessfully seeking to vacate his sentence under 28 U.S.C. § 2255, Wesley appealed. The appellate court found that Wesley did not raise any of the issues in his current appeal - that his sentence was based on clearly erroneous facts, the district court usurped the role of the jury, and the prosecution's evidence lacked reliability - in his original § 2255 motion. As Wesley presented these arguments for the first time on appeal, the court concluded it could not consider them to issue a certificate of appealability.

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    1 views3 pages

    United States v. Wesley, 10th Cir. (2013)

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    Scribd Government Docs
    Monterial Wesley was convicted in federal district court of conspiracy to manufacture and possess cocaine and cocaine base with intent to distribute, and use of a telephone to facilitate a drug transaction. After unsuccessfully seeking to vacate his sentence under 28 U.S.C. § 2255, Wesley appealed. The appellate court found that Wesley did not raise any of the issues in his current appeal - that his sentence was based on clearly erroneous facts, the district court usurped the role of the jury, and the prosecution's evidence lacked reliability - in his original § 2255 motion. As Wesley presented these arguments for the first time on appeal, the court concluded it could not consider them to issue a certificate of appealability.

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    of 3

    FILED

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES COURT OF APPEALS

    FOR THE TENTH CIRCUIT


    _______________________________
    UNITED STATES OF AMERICA,

    September 23, 2013


    Elisabeth A. Shumaker
    Clerk of Court

    Plaintiff - Appellee,
    v.
    MONTERIAL WESLEY,

    No. 13-3149
    (D. Kan.)
    (D.C. Nos. 2:12-CV-02704-JWL &
    2:07-CR-20168-JWL-2)

    Defendant - Appellant.
    _______________________________
    ORDER
    _______________________________
    Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges
    _______________________________

    In federal district court, Mr. Monterial Wesley was convicted of: (1)
    conspiracy to manufacture and possess cocaine and cocaine base with the intent
    to distribute, and (2) use of a telephone to facilitate a drug transaction. After
    unsuccessfully asking the district court to vacate the sentence under 28 U.S.C.
    2255, Mr. Wesley appeals. We can only entertain the appeal if Mr. Wesley is
    entitled to a certificate of appealability. See 28 U.S.C. 2253(c)(1)(B) (2006).
    Holding that he is not entitled to this certificate, we dismiss the appeal.

    This order does not constitute precedent. See 10th Cir. R. 32.1(A).

    Standard for Certificate of Appealability


    To obtain a certificate of appealability, Mr. Wesley must make a
    substantial showing of the denial of a constitutional right. 28 U.S.C.
    2253(c)(2) (2006). For this showing, Mr. Wesley must demonstrate 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. Slack
    v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
    Mr. Wesleys Appellate Arguments
    Mr. Wesley applies for a certificate of appealability on three grounds: (1)
    His sentence was based on clearly erroneous facts; (2) the district court usurped
    the role of the jury in making witness credibility determinations; and (3) the
    prosecutions evidence lacked indicia of reliability.
    Mr. Wesley did not raise any of these issues in the motion that he filed in
    district court. R. vol. 1, at 69-80 (Mr. Wesleys 28 U.S.C. 2255 motion); R.
    vol. 1, at 81-113 (Mr. Wesleys brief in support of his 28 U.S.C. 2255 motion).
    Because these issues are presented for the first time on appeal, they cannot justify
    a certificate of appealability. See United States v. Viera, 674 F.3d 1214, 1220
    (10th Cir. 2012) (absent extraordinary circumstances, this Court will not consider
    arguments for a certificate of appealability that are raised for the first time in an
    appeal).

    Conclusion
    Because we cannot entertain Mr. Wesleys new appellate arguments, we
    cannot issue a certificate of appealability. And without a certificate of
    appealability, we must dismiss the appeal.

    Entered for the Court

    Robert E. Bacharach
    Circuit Judge

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