UNITED STATES of America, Plaintiff-Appellee, v. Michael Lavorus NELSON, Defendant-Appellant, 479 F. App'x 868

ORDER AND JUDGMENT TIMOTHY M. TYMKOVICH, Circuit Judge. Michael Lavorus Nelson, a federal prisoner appearing pro se, seeks a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C § 2255 motion, asserting he should have been sentenced for a crack cocaine offense under the Fair Sentencing Act of 2010, (FSA), Pub.L. No. 111-220, 124 Stat. 2372 (2010), in effect at his sentencing. Nelson cites two grounds for relief: a violation of due process and ineffective assistance of counsel.

On the ineffective assistance of counsel claim, the district court ruled Nelson could not establish prejudice because, even if counsel’s performance was deficient, the FSA did not apply retroactively to Nelson’s pre-Act offense. The district court dismissed the due process claim as procedurally barred, concluding that because Nelson could not show his trial counsel was ineffective, no cause existed to excuse the default. The Supreme Court recently held in Dorsey v.

United States, Nos. 11-5688 and 11-5721, 2012 WL 2344463 (June 21, 2012), that the FSA does apply to offenders, like Nelson, who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. Because the district court’s decision turned on a contrary

interpretation of federal law which has now been clarified, Nelson’s application for a COA is GRANTED, the judgment is VACATED and the case is REMANDED for further consideration in light of Dorsey. Nelson’s motion to proceed in forma pauperis is GRANTED, as is the United States’ motion for

summary disposition. The mandate shall issue forthwith. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.