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

                             FOR THE TENTH CIRCUIT                              July 31, 2018
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 18-6046
                                                    (D.C. Nos. 5:18-CV-00171-F &
MICHAEL DWIGHT NORWOOD,                                  5:06-CR-00180-F-1)
                                                            (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, MATHESON, and McHUGH, Circuit Judges.
                  _________________________________

       Michael Dwight Norwood, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the district court’s decision denying in part and

dismissing in part his motion for relief under 28 U.S.C. § 2255. We deny a COA and

dismiss this matter.

       After pleading guilty, Mr. Norwood was convicted of three counts of distributing

methamphetamine and one count of being a felon in possession of a firearm. He was

sentenced to life in prison. His convictions and sentence were affirmed by this court.

       Mr. Norwood subsequently filed a pro se § 2255 motion, claiming ineffective



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
assistance of counsel. The district court denied the motion and declined to issue a COA;

this court denied the application for COA and dismissed the matter.

       As is relevant to this proceeding, Mr. Norwood filed another pro se § 2255 motion

in which he raised three grounds for relief. The district court considered the merits of

ground one, but denied relief. As to the second and third grounds, the district court

determined those claims were unauthorized second or successive § 2255 claims and

dismissed them for lack of jurisdiction. Mr. Norwood now seeks a COA to appeal from

the district court’s decision denying in part and dismissing in part his § 2255 motion.

       A. Ground One

       In ground one, Mr. Norwood asserted that he had a prior conviction for felony

drug possession in California state court that had been retroactively reduced to a

misdemeanor on November 9, 2017. He argued that because his prior conviction was

now a misdemeanor, it could not be used to enhance his sentence under 21 U.S.C. § 841.

       The district court denied ground one on the merits. To obtain a COA when

seeking review of a merits ruling, “[t]he petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Norwood has failed to show

that reasonable jurists would find the district court’s assessment of his claim in ground

one debatable or wrong.

       The district court determined that, although Mr. Norwood had previously filed a

§ 2255 motion, this claim was not a second or successive § 2255 claim to the extent it

challenged his sentence based on the reclassification of his prior conviction. This

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determination is consistent with our precedent. See In re Weathersby, 717 F.3d 1108,

1111 (10th Cir. 2013).

       In considering the merits of this claim, the district court concluded that

Mr. Norwood was not entitled to relief for two reasons. First, the court cited to authority

from the Ninth Circuit that had been adopted by this court in an unpublished decision that

rejected the argument that a prior conviction that was re-designated from a felony to a

misdemeanor could no longer be counted as a prior felony for purposes of § 841. The

district court also relied on the reasoning in this court’s decision in United States v. Dyke,

718 F.3d 1282 (10th Cir. 2013), where this court held that an expunged state court

conviction still counts as a conviction under § 841(b) because “[e]xpunction under state

law . . . does not alter the historical fact of conviction,” id. at 1292 (internal quotation

marks omitted).

       Second, the court determined that the conviction that was reduced to a

misdemeanor was not the conviction on which the government relied to enhance

Mr. Norwood’s sentence. The felony conviction that was reduced to a misdemeanor was

in the Superior Court of California, County of San Joaquin, for possession of a controlled

substance. See R. at 153. The felony conviction that was used to enhance his sentence

was in the Superior Court of California, County of Sacramento, for “conspiracy to

transport/sell narcotic/controlled substance.” Supp. R. at 5.

       In his application for COA, Mr. Norwood does not address the district court’s

reasoning. He continues to argue that he is entitled to relief because he had a prior felony

that was reclassified as a misdemeanor, but he fails to rebut the record evidence showing

                                               3
that his sentence was not enhanced using the conviction that has now been reclassified as

a misdemeanor.

       B. Grounds Two and Three

       In ground two, Mr. Norwood alleged his trial counsel provided ineffective

assistance of counsel when he forged Mr. Norwood’s signature on the petition to enter a

plea of guilty. In ground three, he alleged that his prior conviction did not qualify as a

drug trafficking offense. The district court concluded that this portion of Mr. Norwood’s

motion constituted a second or successive § 2255 motion and he had not received

authorization from this court to file such a motion. The court therefore dismissed

grounds two and three for lack of jurisdiction. Mr. Norwood has failed to show that

reasonable jurists would debate the correctness of the district court’s procedural ruling

dismissing grounds two and three. See Slack, 529 U.S. at 484.

       “A prisoner’s post-judgment motion is treated like a second-or-successive § 2255

motion . . . if it asserts or reasserts claims of error in the prisoner’s conviction.” United

States v. Baker, 718 F.3d 1204, 1206 (10th Cir. 2013). And 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. See 28 U.S.C. §§ 2244(b)(3)(A),

2255(h). In the absence of such authorization, a district court lacks jurisdiction to address

the merits of a second or successive § 2255 motion. See In re Cline, 531 F.3d 1249, 1251

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

       Mr. Norwood does not dispute that he filed a second § 2255 motion in which he

raised claims attacking his conviction and sentence without authorization from this court.

                                               4
He argues that the district court erred in dismissing his motion because it was timely filed

and he raised meritorious due process and equal protection claims. This argument fails to

address the district court’s determination that it lacked jurisdiction to consider the claims

because they were second or successive and Mr. Norwood had not obtained authorization

from this court to file them.

       Reasonable jurists could not debate the district court’s decision to deny in part and

dismiss in part Mr. Norwood’s § 2255 motion. Accordingly, we deny a COA and dismiss

this matter. We grant Mr. Norwood’s motion for leave to proceed without prepayment of

costs or fees.


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




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