Free Order on Motion for New Trial - District Court of Colorado - Colorado

Case 1:01-cr-00395-RPM

Document 573

Filed 01/07/2008

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Criminal Case No. 01-cr-00395-RPM UNITED STATES OF AMERICA, Plaintiff, v. JAMES FLOYD CLEAVER, Defendant. __________________________________________________________________ ORDER DISMISSING MOTION FOR NEW TRIAL __________________________________________________________________ On November 20, 2007, James Floyd Cleaver filed a motion for new trial based upon newly discovered evidence, alleging a failure by the prosecutor to meet his Brady obligations in playing to the jury only a part of a tape recorded conversation between a witness at trial and Cleaver. On August 4, 2003, a jury found Cleaver guilty of four offenses and he was sentenced to 400 months in prison on November 25, 2003. The conviction and sentence were affirmed on direct appeal by an Order and Judgment entered by the Tenth Circuit Court of Appeals on December 6, 2005. Cleaver then filed a motion under 28 U.S.C. § 2255, which this Court denied on July 25, 2006. On May 30, 2007, the Court of Appeals denied Cleaver's request for a certificate of appealability and dismissed his petition. On review of the filings, it appears that the motion for a new trial amounts to a second or successive motion under Section 2255, and accordingly, under Sections 2255 and 2244(a)(3)(A) , Cleaver must file a motion with the Court of Appeals authorizing this Court to consider the application. It is

Case 1:01-cr-00395-RPM

Document 573

Filed 01/07/2008

Page 2 of 3

therefore ORDERED that the motion for new trial is dismissed. DATED: January 7th, 2008 BY THE COURT: s/Richard P. Matsch ___________________________ Richard P. Matsch, Senior Judge

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Case 1:01-cr-00395-RPM

Document 573

Filed 01/07/2008

Page 3 of 3

CERTIFICATE OF MAILING

I certify that on January 7, 2008, I mailed a copy of the foregoing Order to the following:

James Floyd Cleaver #30701-013 U. S. Penitentiary P. O. Box 1000 Leavenworth, Kansas 66048

GREGORY C. LANGHAM, Clerk

s/M. V. Wentz By___________________ Deputy

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