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

                             FOR THE TENTH CIRCUIT                            September 25, 2017
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-6108
                                                      (D.C. No. 5:06-CR-00115-R-1)
JESUS A. TINAJERO-PORRAS,                                     (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

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

       Jesus A. Tinajero-Porras, a federal prisoner appearing pro se, filed a petition for a

writ of audita querela, which the district court treated as a second or successive 28 U.S.C.

§ 2255 motion and denied for lack of jurisdiction. To appeal from that decision,

Tinajero-Porras must obtain a certificate of appealability (COA). See United States v.

McIntyre, 313 F. App’x 160, 162 (10th Cir. 2009) (requiring COA to appeal from denial

of writ of audita querela treated as § 2255 motion). We deny a COA and dismiss the

matter.

       Tinajero-Porras was convicted by a jury of multiple drug offenses, and his direct

appeal was unsuccessful. See United States v. Tinajero-Porras, 275 F. App’x 794, 796

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
(10th Cir. 2008). His first motion for relief under 28 U.S.C. § 2255 was also

unsuccessful. It was followed by a motion for relief under Fed. R. Civ. P. 60(b), which

the district court treated as an unauthorized successive § 2255 motion and dismissed for

lack of jurisdiction. Tinajero-Porras’s request for a COA was denied. See United States

v. Tinajero-Porras, 670 F. App’x 657, 658 (10th Cir. 2016).

       Tinajero-Porras then filed the underlying petition for a writ of audita querela,

asserting that he should be resentenced because the court failed to properly apply

U.S.S.G. § 1B1.3(a)(1)(B)’s provisions in determining the relevant conduct for his

offenses. The district court treated the petition as a second or successive § 2255 motion

and denied it for lack of jurisdiction. Tinajero-Porras now seeks a COA to appeal that

decision.

       To be entitled to a COA, Tinajero-Porras must show “that jurists of reason would

find it debatable whether the petition 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, 478 (2000).

       “A § 2255 motion is one claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or laws of the United States, or that

the court was without jurisdiction to impose such sentence, or that the sentence was in

excess of the maximum authorized by law, or is otherwise subject to collateral attack.”

United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) (internal quotation marks

omitted). Although Tinajero-Porras entitled his pleading as a petition for a writ of audita

querela and even instructed the court not to treat it as a § 2255 motion, “[i]t is the relief

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sought, not [the] pleading’s title, that determines whether the pleading is a § 2255

motion.” Id. at 1149. Because he is alleging that his sentence is unlawful, the pleading is

properly treated as a § 2255 motion.

       Moreover, “a writ of audita querela is not available to a petitioner when other

remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.” United

States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (internal quotation marks

omitted); see also Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (“The

exclusive remedy for testing the validity of a judgment and sentence, unless it is

inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.” (internal quotation

marks omitted)). Courts have found the remedy under § 2255 to be inadequate or

ineffective only in extremely limited circumstances, see Caravalho, 177 F.3d at 1178,

none of which is present here.

       Tinajero-Porras contends that a § 2255 remedy is not available because his claim

is based on non-constitutional sentencing error arising from a clarifying amendment to

the Sentencing Guidelines. But “§ 2255’s substantive and procedural barriers by

themselves do not establish that § 2255 is inadequate or ineffective.” Id. (citing

Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997)). “[T]he mere fact that

[petitioner] is precluded from filing a second § 2255 petition does not establish that the

remedy in § 2255 is inadequate.” Id. at 1179.

       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,

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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). Reasonable

jurists could not debate that the district court was correct to treat Tinajero-Porras’s

pleading as an unauthorized second or successive § 2255 motion and to deny it for lack of

jurisdiction.

       Accordingly, we deny Tinajero-Porras’s request for a COA. We grant his motion

to proceed on appeal without prepayment of costs or fees and deny as moot Appellee’s

motion for an extension of time.


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




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