Did the Tenth Circuit err in not granting a COA and refusing to remand back to the district court or to properly consider Medina's Rule 60(b) motion?

QUESTIONS PRESENTED . Mr. Medina alleged his counsel was ineffective for failing to call witnesses and present proof of lost alibi evidence. Medina entered a conditional plea to have his speedy trial claim of prejudice from lost evidence heard on appeal. The omitted witnesses’ testimony would have established lost email and irretrievable cell site location information ("CSLI") from a phone carrier and a lost cell phone. Medina : maintained the missing phone and data was prejudicial to an alibi defense with respect to the fourth-factor of a speedy trial claim. In finding no prejudice, the Tenth Circuit found on appeal “just because evidence is irretrievable from one source doesn’t mean it’s irretrievable from all sources.” Medina then presented the unheard testimony from affidavits that counsel failed to submit, yet the district court never addressed the claim and waited over twoyears in denying the 28 U.S.C. 2255 motion. Medina had to file a writ of mandamus to get the court to finally answer the motion. Despite the Tenth Circuit granting mandamus relief, the district court still did not answer the claim. Medina then filed a civil Rule 60(b)(6) motion asking for his claim to be resolved. Thus, this case presents the following questions: Did the Tenth Circuit err in not granting a COA and refusing to remand back . to the district court or to properly consider Medina’s Rule 60(b) motion? And is the Tenth Circuit correct in determining that: “Medina cites no authority—and we are aware of none—holding that refusal to consider evidence in support of a claim is the same as failing to rule on the claim.” This case provides an opportunity for the high Court to provide supervision to the lower courts to resolve matters properly presented to them. ; PARTIES Karl L. Schock, Assistant United States Attorney, for the Respondent. Delano Medina, for the Petitioner. Page 2 of 9