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Date: Filed /
STATES COURT OF APPEALS
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, MURPHY, and O'BRIEN, Circuit Judges.
Defendant-Appellant Patricia Williams, a federal inmate appearing pro se,
seeks to appeal from the district court's order denying her "Motion for Relief
from Judgment Pursuant to Rule 60(b)(4)(6), Fed. R. Civ. P.," and its subsequent
denial of her motion for reconsideration. In the motion, Ms. Williams challenged
the district court's October 2001 disposition of her successful § 2255 motion to
modify and amend her sentence. She argued that: (1) she was not notified of her
right to assistance of counsel, (2) she was not allowed to reply to the
government's response, (3) she was not allowed to be present when the sentence
was modified, (4) she was not notified of her right to appeal the sentence, and (5)
the government committed fraud on the court by failing to identify pre-Guidelines conduct
contained in two counts. Notably, Ms. Williams did not
appeal from the district court's order and resulting judgment on her § 2255
motion. The district court construed Ms. Williams's current motion as a true
Rule 60(b) motion, see Gonzalez v. Crosby, 545 U.S. 524 (2005), but it denied
the motion as untimely, given that Ms. Williams filed it in October 2006, some
five years after the district court entered its order on her § 2255 motion. In the
alternative, the district court determined that the Rule 60(b) motion was
meritless. A district court's decision to grant or deny a Rule 60(b) motion is
reviewed for abuse of discretion. See Yapp v. Excel Corp., 186 F.3d 1222,
(10th Cir. 1999).
To secure a COA, Ms. Williams must make "a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires
that she demonstrate that "reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further." See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel,
U.S. 473, 484 (2000)) (internal quotation marks omitted). Given that the
substantive standard of review is abuse of discretion, we do not think it
reasonably debatable that the district court erred by concluding that Ms.
Williams's motion was untimely after considering her failure to appeal the initial
§ 2255 judgment, her five year delay in filing the instant motion, and the
Supreme Court's issuance of Gonzalez in 2005.
We DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
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