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

                           FOR THE TENTH CIRCUIT                       December 3, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
KENNETH STIGER,

             Petitioner - Appellant,

v.                                                         No. 14-1351
                                                  (D.C. No. 1:14-CV-01567-LTB)
WARDEN J. OLIVER,                                            (D. Colo.)

             Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, EBEL, and GORSUCH, Circuit Judges.


      Kenneth Stiger was convicted of crimes related to drug distribution and was

sentenced to life in prison. He filed a 28 U.S.C. § 2255 motion challenging his

convictions and sentence. The district court denied the § 2255 motion in 2009.

Earlier this year, Mr. Stiger filed a motion seeking relief pursuant to 28 U.S.C.

§ 2241. The district court determined, however, that Mr. Stiger was challenging the

validity of his sentence and therefore he needed to raise his claims in a § 2255

motion. In response to the district court’s show cause order, Mr. Stiger failed to

demonstrate that his claims could not have been raised in an initial § 2255 motion.

*
       This order is not binding precedent except under the doctrines of law of the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.
Instead, he requested that the district court construe his § 2241 motion as a request to

file a second or successive § 2255 motion. In its order dismissing Mr. Stiger’s

motion for lack of jurisdiction, the district court explained that it lacked authority to

authorize the filing of a second or successive § 2255 motion and that such a request

must be made to the court of appeals.

      Mr. Stiger filed a notice of appeal from the district court’s dismissal and

requested a certificate of appealability (COA). But Mr. Stiger never filed a brief in

support of his COA request. Instead, he filed a brief requesting permission for leave

to file a successive motion under 28 U.S.C. § 2255, and a motion for leave to proceed

on appeal without costs and fees (“IFP motion”). Because Mr. Stiger has not

presented any argument to support the granting of a COA, we deny his COA request

and his IFP motion.

      We have considered his request for authorization to file a successive § 2255

motion and we conclude that it must also be denied. Mr. Stiger contends that he is

entitled to authorization based on the Supreme Court’s decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013). But the Supreme Court has not made Alleyne

retroactively applicable to cases on collateral review and therefore it does not satisfy

the requirement for authorization in 28 U.S.C. § 2255(h)(2). See In re Payne,

733 F.3d 1027, 1029-30 (10th Cir. 2013). This denial of authorization “shall not be




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appealable and shall not be the subject of a petition for rehearing or for a writ of

certiorari.” 28 U.S.C. § 2244(b)(3)(E).

                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




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