                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      November 25, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 13-3227
                                                (D.C. Nos. 2:13-CV-02435-JWL &
CARLOS GASCA, a/k/a Chino,                           2:03-CR-20085-JWL-2)
                                                            (D. Kan.)
             Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, EBEL and BACHARACH, Circuit Judges.


      Carlos Gasca, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the district court’s decision dismissing for lack of

jurisdiction his second motion for relief under 28 U.S.C. § 2255. We deny a COA

and dismiss this matter.

      In 2004, Mr. Gasca pleaded guilty to conspiracy to possess with intent to

distribute methamphetamine. He was sentenced to 360 months’ imprisonment. He

filed an appeal, but we dismissed it because he had waived his appellate rights in his

plea agreement. In 2006, he filed a § 2255 motion to vacate, set aside or correct his

*
       This order is not binding precedent except under the doctrines of law of the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.
sentence. The district court denied the motion, and we denied his request for a COA.

See United States v. Gasca, 236 F. App’x 459, 460 (10th Cir. 2007).

      In August 2013, Mr. Gasca filed a second § 2255 motion. The district court

concluded that this motion was an unauthorized second or successive § 2255 motion

and dismissed it for lack of jurisdiction. Mr. Gasca now seeks a COA to appeal from

that decision.

      To obtain a COA, Mr. Gasca 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. 473, 484 (2000). A prisoner may not file a second or successive

§ 2255 motion unless he first obtains an order from the circuit court authorizing the

district court to consider the motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h).

Absent such authorization, a district court lacks jurisdiction to address the merits of a

second or successive § 2255 motion. In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam).

      In his second § 2255 motion, Mr. Gasca argued that he was entitled to relief

from his sentence based on the Supreme Court’s recent decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013). As the district court correctly explained, however,

Mr. Gasca had already filed one § 2255 motion, and he was therefore required to

obtain authorization from this court before he could file a second § 2255 motion.

Because he had not done so, the district court dismissed the motion for lack of

jurisdiction. See Cline, 531 F.3d at 1251.


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      The district court also concluded that it was not in the interest of justice to

transfer the motion to this court because Mr. Gasca’s claim was not likely to have

merit. As the district court noted, Alleyne has not been made retroactive to cases on

collateral review. See R., Vol. 1 at 59 (citing Simpson v. United States, 721 F.3d

875, 876-77 (7th Cir. 2013)). We recently joined the Seventh Circuit in holding that

Alleyne does not meet the standard for authorizing second or successive claims

because the Supreme Court has not made Alleyne retroactive to cases on collateral

review as required by § 2255(h)(2). See In re Payne, ____ F.3d ____, 2013 WL

5200425, at *1-2 (10th Cir. Sept. 17, 2013).

      Reasonable jurists could not debate that the district court was correct in its

procedural ruling to dismiss Mr. Gasca’s second § 2255 motion for lack of

jurisdiction. Accordingly, we deny a COA and dismiss this matter.


                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




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