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Date: Filed /
STATES COURT OF APPEALS
Before BRISCOE, LUCERO and MURPHY, Circuit Judges.
On February 16, 2005, Antonius Maria Heijnen filed an application for
writ of habeas corpus in the United States District Court for the District of New
Mexico. Heijnen was convicted of conspiracy and wire fraud and sentenced in
the United States District Court for the District of South Carolina. He is
currently incarcerated in New Mexico. In his application, Heijnen raised several
constitutional claims relating to his conviction and sentence. The district court
rejected Heijnen's pro se characterization of his application as one filed pursuant
to 28 U.S.C. § 2242, concluding it was a 28 U.S.C. § 2255 motion because it
challenged the validity of Heijnen's conviction and sentence. Accordingly, the
court dismissed the application without prejudice and instructed HEIJNEN that it
must be filed with the district court in South Carolina. See 28 U.S.C. § 2255.
("A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside or correct the sentence."
HEIJNEN seeks to appeal the district court's dismissal of his application.
Because our review of the record demonstrates that the district court properly
characterized Heijnen's application as a § 2255 motion, HEIJNEN cannot pursue
an appeal until he obtains a certificate of appealability ("COA"). See 28 U.S.C.
2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255
motion unless the movant first obtains a COA). To be entitled to a COA,
HEIJNEN must show "that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S.
474, 484-85 (2000) (holding that when a district court dismisses a habeas petition
on procedural grounds, a petitioner is entitled to a COA only if he shows both
that reasonable jurists would find it debatable whether he had stated a valid
constitutional claim and debatable whether the district court's procedural ruling
was correct). We conclude the district court's dismissal of Heijnen's application
is not deserving of further proceedings or subject to a different resolution on
appeal. Accordingly, this court denies HEIJNEN a COA and
appeal. Heijnen's motion to proceed in forma pauperis on appeal is
Entered for the Court
CLERK, COURT OF APPEALS
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Date: Filed /
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