                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                December 18, 2007
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                      No. 07-7055
       v.                                            (E.D. Oklahoma)
 WILLIAM DEAN CARPENTER,                         (D.C. No. 02-CR-72-FHS)

              Defendant-Appellant.



                                         ORDER


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.


      William Dean Carpenter seeks a certificate of appealability (“COA”) to

appeal the district court’s order denying his March 30, 2007 “Habeas Corpus

Motion.” For the reasons set forth below, we construe Mr. Carpenter’s pleadings

as an application to file a successive 28 U.S.C. § 2255 motion, deny that motion,

and vacate the district court’s order.

                                 I. BACKGROUND

        On October 17, 2002, Mr. Carpenter pleaded guilty in the district court to

 a single count of making a false claim against the United States in violation of

 18 U.S.C. § 287. The district court sentenced him to thirty months’
imprisonment. The court ruled that this sentence would be served consecutively

to sentences that had previously been imposed by state and federal courts.

      In January 2005, Mr. Carpenter filed a pro se pleading entitled

“Application for Writ of Coram Nobis/Alternative Entry of Nunc Pro Tunc.”

See United States v. Carpenter, 164 F. App’x. 707 (10th Cir. 2006). He argued

that in light of the United States Supreme Court decisions in United States v.

Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004),

he was entitled to resentencing. The district court denied Mr. Carpenter’s

application, reasoning that a provision in Mr. Carpenter’s plea agreement

waived his right to appeal his sentence or challenge it in a post-conviction

proceeding. The court also reasoned that Mr. Carpenter’s application should be

construed as a 28 U.S.C. § 2255 motion to vacate, modify, or set aside his

sentence and that the application was time-barred because it was filed more than

a year after his sentence became final. See 28 U.S.C. § 2255(1) (providing that

“[a] 1-year period of limitation shall apply to a motion under this section” and

that “[t]he limitation period shall run from the latest of . . . the date on which

the judgment of conviction becomes final”).

      On appeal of that prior action, this court concluded that the district court

had properly denied Mr. Carpenter’s requests for a writ of coram nobis and an

order nunc pro tunc. We also concluded that to the extent the district court had

recharacterized Mr. Carpenter’s application as a § 2255 motion and denied such

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relief, there was no basis for granting him a COA. See Carpenter, 164 F. App’x

at 709-10.

      On March 30, 2007, Mr. Carpenter filed the instant “Habeas Corpus

Petition.” He argued that the district court lacked jurisdiction over his criminal

case because the statute granting district courts jurisdiction over all offenses

against the laws of the United States, 18 U.S.C. § 3231, was not properly

enacted by Congress.

      The district court denied Mr. Carpenter’s habeas corpus petition. The

court construed the petition as a 28 U.S.C. § 2255 motion and concluded that it

was time-barred because it had not been filed within a year of November 3,

2002, the date on which Mr. Carpenter’s judgment of conviction became final.

See Rec. doc. 49.

.

                                 II. DISCUSSION

       Federal prisoners are generally barred from attacking their federal

convictions through second or successive 28 U.S.C. § 2255 motions. United

States v. Kelly, 235 F.3d 1238, 1241 (10th Cir. 2000). A successive § 2255

motion is one that “(1) successively repeats claims previously decided on the

merits, or (2) abusively asserts new ground unjustifiably omitted from a prior

petition.” Id. (internal quotation marks omitted).




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         In order to file a successive petition, a petitioner must allege: (1) newly

discovered evidence that, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the petitioner guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable. 28 U.S.C. §

2255. However, a prisoner may not file a successive motion under § 2255

without first obtaining permission from this court. See Daniels v. United States,

254 F.3d 1180, 1197-98 (10th Cir. 2001).

         Here, Mr. Carpenter previously filed a challenge to his sentence, which

the district court properly construed as a § 2255 motion and denied as time-

barred. Despite that prior ruling, Mr. Carpenter did not seek permission from

this court to file this second challenge to his sentence. Therefore, the district

court lacked jurisdiction to rule on the second motion, and we must vacate its

order. See United States v. Avila-Avila, 132 F.3d 1347, 1348-49 (10th Cir.

1997).

         We will, however, construe Mr. Carpenter’s pleadings as an implied

application to file a second § 2255 motion in district court. See id. at 1349. So

construed, we conclude that these pleadings fail to meet the standard for

successive § 2255 motions. Mr. Carpenter identifies no newly discovered




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evidence that would have affected a factfinder’s determination of guilt and he

identifies no newly applicable rule of constitutional law.

                               III. CONCLUSION

         Accordingly, we DENY Mr. Carpenter’s application for a COA, VACATE

the district court’s May 29, 2007 order disposing of Mr. Carpenter’s

unauthorized second motion under 28 U.S.C. § 2255, and DENY Mr.

Carpenter’s implied application for leave to file a second § 2255 in the district

court.



                                       Entered for the Court,




                                       Elisabeth A. Shumaker
                                       Clerk of Court




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