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

                              FOR THE TENTH CIRCUIT                    September 8, 2015

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

      Plaintiff - Appellee,

v.                                                         No. 15-5063
                                             (D.C. Nos. 4:15-CV-00293-CVE-FHM &
MALCOM DEROME MCGEE,                                 4:00-CR-00105-CVE-1)
                                                           (N.D. Okla.)
      Defendant - Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before TYMKOVICH, PHILLIPS, and MORITZ, Circuit Judges.


      Malcom Derome McGee, a federal prisoner proceeding pro se, seeks to appeal

the district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or

correct his sentence. The court dismissed McGee’s motion for lack of jurisdiction,

construing it as an unauthorized second or successive § 2255 motion. We deny a

certificate of appealability (“COA”) and dismiss this proceeding.

I.    Background

      A jury found McGee guilty on three counts: Count 1, conspiring to possess

PCP, in violation of 21 U.S.C. § 846; Count 2, causing another person to unlawfully

*
       This order is not binding precedent except under the doctrines of law of the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.
possess with intent to distribute PCP, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(A)(iv), and 18 U.S.C. § 2(b); and Count 3, using a communication facility to

facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b). See United

States v. McGee, 245 F. App’x 857, 858 (10th Cir. 2007). The district court granted

McGee’s motion to arrest judgment as to Count 1. See id. The court ultimately

sentenced him to life imprisonment on Count 2 and 96 months’ imprisonment on

Count 3.1 See id. at 858-59.

      McGee filed a § 2255 motion in 2003. The district court denied relief, and this

court denied his application for a COA and dismissed his appeal. See id. at 858. In

2013, McGee filed a Fed. R. Civ. P. 60(d) motion in his criminal case. The district

court construed that motion as an unauthorized second or successive § 2255 motion

and dismissed it for lack of jurisdiction.

      McGee filed another § 2255 motion in 2015. He argued that motion was not a

second or successive § 2255 motion under this court’s reasoning in In re Weathersby,

717 F.3d 1108 (10th Cir. 2013) (per curiam). The district court construed the motion

as second or successive and unauthorized and dismissed it for lack of jurisdiction.

The court also denied McGee’s motion for reconsideration. McGee filed a notice of

appeal. He has also filed in this court a Motion for Summary Reversal and Remand

and a Motion for Leave to Proceed on Appeal Without Prepayment of Costs or Fees.
1
      On direct appeal, we reversed McGee’s original 56-year sentence on Count 3,
and the district court imposed the 96-month sentence on remand. See McGee, 245 F.
App’x at 859.


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II.   Discussion

      A.     Standard of Review

      McGee must obtain a COA to pursue an appeal. See United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008); see also 28 U.S.C. § 2253(c). Because the

district court’s ruling rests on procedural grounds, he must show both “that jurists of

reason would find it debatable whether the [motion] states a valid claim of the denial

of a constitutional right and 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) (emphasis added).

      In his opening brief, which is captioned Combined Opening Brief and

Application for a Certificate of Appealability, McGee fails to acknowledge the

necessity of obtaining a COA before this court can consider the merits of his appeal.

He argues instead that, because his motion is not a second or successive § 2255

motion, we should summarily reverse the dismissal and remand to the district court.

But we explained in Harper, “[T]he district court’s dismissal of an unauthorized

§ 2255 motion is a ‘final order in a proceeding under section 2255’ such that § 2253

requires petitioner to obtain a COA before he or she may appeal.” 545 F.3d at 1233

(quoting 28 U.S.C. § 2253(c)(1)(B)).

      We will nonetheless liberally construe McGee’s pro se opening brief as

seeking a COA. See Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002). We

conclude that McGee satisfies one, but not both, parts of the Slack test.


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      B.     McGee’s § 2255 Claim

      McGee alleged in his most recent § 2255 motion that his life sentence on

Count 2 was based on two prior state-court convictions for felony drug offenses.

Under 21 U.S.C. § 841, if a person violates subsection (a) “after two or more prior

convictions for a felony drug offense have become final, such person shall be

sentenced to a mandatory term of life imprisonment without release.” 21 U.S.C.

§ 841(b)(1)(A). McGee claimed that, after his original § 2255 proceedings became

final in 2007, the state court in 2015 amended nunc pro tunc the judgment in one of

his prior drug convictions, reducing that conviction from a felony to a misdemeanor.

See R. at 53-54. He maintained that, without this second felony drug conviction, a

life sentence under § 841 was no longer mandatory.

      McGee noted that, under Johnson v. United States, “a defendant given a

sentence enhanced for a prior conviction is entitled to a reduction if the earlier

conviction is vacated,” 544 U.S. 295, 303 (2005). Johnson held “that a prisoner

could proceed under § 2255 after successful review of the prior state conviction on

federal habeas under § 2254 or favorable resort to any postconviction process

available under state law.” Id. at 304; see also Custis v. United States, 511 U.S. 485,

497 (1994) (recognizing that a defendant who has successfully attacked state

sentences either in state court or in federal habeas review could “then apply for

reopening of any federal sentence enhanced by the state sentences”); United States v.

Cox, 83 F.3d 336, 339 (10th Cir. 1996) (“If a defendant successfully attacks state


                                          -4-
sentences, he may then apply for reopening of any federal sentence enhanced by the

state sentences.”).

       McGee argued further that relief in the form of a sentence reduction was not

available to him until the state court amended his felony drug conviction, reducing it

to a misdemeanor. Citing In re Weathersby, 717 F.3d at 1110-11, McGee contended

that his § 2255 motion was not second or successive, and he therefore did not need

this court’s authorization to file that motion.

       C.     Jurists of Reason Would Debate the Correctness of the District
              Court’s Procedural Ruling

       Addressing the second part of the Slack test, we conclude that jurists of reason

would debate the correctness of the district court’s procedural ruling in this case.

Having already filed a first § 2255 motion, McGee ordinarily must obtain this court’s

authorization to file a second or successive motion. See 28 U.S.C. §§ 2255(h),

2244(b)(3). But here, it is debatable whether McGee required our authorization to

file his latest § 2255 motion.

       In In re Weathersby, the defendant sought this court’s authorization to file a

second or successive § 2255 motion. 717 F.3d at 1109. He alleged that, after he

filed his first § 2255 motion, six state convictions used in calculating his federal

sentence had been expunged. Id. We dismissed Weathersby’s motion for

authorization as unnecessary, holding that the § 2255 motion he sought to file was

not second or successive under § 2255(h). Id. We reasoned that “relief under § 2255

is not available until the state conviction used to enhance the federal sentence is

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vacated,” because “[i]t is the fact of the state court vacatur that gives rise to the

federal claim.” Id. at 1110. Therefore, if the prisoner’s state convictions were

vacated after the proceedings on his first § 2255 motion became final, then a claim to

reopen a federal sentence based on the vacatur is not second or successive and does

not require this court’s prior authorization. Id. at 1111.

       McGee’s sentence-reduction claim in his most recent § 2255 motion is based

on a state-court amended judgment entered in 2015 that did not exist until after his

original § 2255 proceedings became final. Therefore, whatever the merits of his

claim,2 it was not ripe at the time he filed his first § 2255 motion. See id. Thus, it is

debatable whether the district court was correct in dismissing McGee’s § 2255

motion as an unauthorized second or successive motion.3




2
      In concluding that the claim in In re Weathersby was not a second or
successive § 2255 claim, we expressed no opinion on whether it was timely or had
any merit. 717 F.3d at 1111.
3
       Courts must liberally construe pro se § 2255 motions. See United States v. Lee
Vang Lor, 706 F.3d 1252, 1256 (10th Cir. 2013) (construing pro se § 2255 motion
liberally). Here, McGee’s § 2255 motion alleged a sentence-reduction claim based
on a state-court judgment that was amended in 2015. In his Motion to Entertain his
Accompanying Motion to Vacate, Set Aside or Correct Sentence Pursuant to
28 U.S.C. § 2255, McGee argued that his § 2255 motion was not second or
successive under In re Weathersby. But in its order dismissing the motion for lack of
jurisdiction, the district court did not address that contention. In his motion for
reconsideration, McGee argued that the district court had overlooked his contention
that the district court had jurisdiction to entertain his § 2255 motion under the
reasoning in In re Weathersby. The district court denied that motion, once again
failing to discuss McGee’s contention.


                                           -6-
      D.     Jurists of Reason Would Not Debate That McGee’s § 2255 Motion
             Fails to State a Valid Claim of the Denial of a Constitutional Right

      To obtain a COA, McGee must also establish that jurists of reason would find

it debatable whether his § 2255 motion states a valid claim of the denial of a

constitutional right. See Slack, 529 U.S. at 484. On this issue, “our review is

limited. We will only take a ‘quick’ look at the [§ 2255 motion] to determine

whether [McGee] has facially alleged the denial of a constitutional right.” Gibson v.

Klinger, 232 F.3d 799, 803 (10th Cir. 2000) (internal quotation marks and brackets

omitted). We may not issue a COA if McGee alleges only a violation of federal law.

See United States v. Gordon, 172 F.3d 753, 754 (10th Cir. 1999) (holding court could

not issue COA on defendant’s non-constitutional federal claims). While a

non-constitutional sentencing issue may be a proper basis for relief in the district

court, such a claim does not support issuance of a COA, because it fails to assert the

denial of a constitutional right. See id. (noting statute “differentiate[s] between the

type of [motion] that can be filed and the type that can be appealed”).

      McGee does not contend that his claim to reopen his federal sentence rests on

the denial of a constitutional right. We conclude that his § 2255 motion alleges only

a non-constitutional sentencing issue. McGee asserted that a successful state voter

initiative reclassified offenses involving possession of small amounts of certain

controlled substances as misdemeanors rather than felonies. See R. at 47 (citing

Cal. Health & Safety Code § 11350 (amended eff. Nov. 5, 2014)). He claimed that

the same voter initiative enacted a statute under which he successfully petitioned to

                                          -7-
reduce his conviction from a felony to a misdemeanor. See id. (citing Cal. Penal

Code § 1170.18(f)). McGee’s § 2255 motion further asserted that, as a result of his

amended state-court judgment, he does not have two predicate felony drug

convictions requiring a mandatory life sentence under 21 U.S.C. § 841. See R. at 47.

His claim is therefore based on the construction and application of § 841 and

consequently does not satisfy the second prong of the Slack test. See Gordon,

172 F.3d at 754 (recognizing “that [28 U.S.C.] § 2253(c)(2) does not permit a COA

to issue on a purely statutory claim”).

III.   Conclusion

       We conclude that jurists of reason would not debate that McGee’s § 2255

motion fails to state a valid claim of the denial of a constitutional right. Accordingly,

we deny his application for a COA and dismiss the appeal. We deny McGee’s

Motion for Summary Reversal and Remand, but grant his Motion for Leave to

Proceed on Appeal Without Prepayment of Costs or Fees.


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




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