                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 23, 2008
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                        No. 08-5067
 v.                                                     (N.D. of Okla.)
 LUIS MANUEL GONZALEZ,                      (D.C. Nos. 4:08-CV-00207-HDC-SAJ
                                                and 4:99-CR-00066-CVE-1)
              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Luis Manuel Gonzalez appeals the district court’s denial of his pro se “First

Amended 28 USC § 2255” 1 motion. For the foregoing reasons, we vacate the




      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
       Gonzalez entitled his motion “Defendant’s First Amended 28 USC § 2255
Pursuant to Federal Rule Civil Procedure 15(c)(2) ‘Relation Back Theory’ Cite:
Mayle vs. Fleix, 162 L.Ed.2d 582 (2005).”
district court’s order and remand to the district court with directions to dismiss

for lack of jurisdiction.

                                    I. Background

         Gonzalez was initially charged with conspiracy to possess

methamphetamine and cocaine with the intent to distribute. He pleaded guilty to

the conspiracy charge, and the district court imposed a sentence of life in prison.

In 2001, we affirmed Gonzalez’s conviction on direct appeal. United States v.

Gonzalez, 12 F. App’x 792 (10th Cir. 2001).

         Gonzalez then filed a 28 U.S.C. § 2255 motion, which the district court

denied. On appeal, we remanded for an evidentiary hearing. United States v.

Gonzalez, 98 F. App’x 825 (10th Cir. 2004). After conducting an evidentiary

hearing, the district court again denied Gonzalez’s § 2255 motion, and we

affirmed that denial. United States v. Gonzalez, 209 F. App’x 842 (10th Cir.

2006).

         This appeal follows a series of filings. First, on April 7, 2008, Gonzalez

filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). The

district court denied that motion on April 9, 2008, finding Gonzalez was not

entitled to a sentence reduction pursuant to § 3582(c)(2), and to the extent

Gonzalez was actually raising a claim under United States v. Booker, 543 U.S.




                                           2
220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), he was not

permitted relief under such a theory either. 2

      After the district court’s denial of Gonzalez’s § 3582(c)(2) motion, on

April 11, 2008, Gonzalez filed an amended pro se § 2255 motion, entitled

“Defendant’s First Amended 28 USC § 2255 Pursuant to Federal Rule Civil

Procedure 15(c)(2) ‘Relation Back Theory’ Cite: Mayle vs. Fleix, 162 L.Ed.2d

582 (2005).”

      On April 23, 2008, the district court denied that amended motion. The

district court concluded Gonzalez’s amended motion was “identical in substance

to a pleading filed by Gonzalez on April 7, 2008,” with the exception that the

April 11, 2008 motion added a claim of ineffective assistance of counsel for

counsel’s failure to object to the substantive claim Gonzalez asserts in both

pleadings. R. Vol. I., Order, No. 99-CR-66-HDC, at 1 (D. Okla. Apr. 23, 2008).

The district court explained that in Gonzalez’s § 3582(c)(2) motion, the substance

of his argument was that the court enhanced his sentence based on conduct not

specifically charged in the offense of conviction or proven to a jury. Thus, his

argument essentially asserted an alleged violation under Booker and Apprendi.

      In dismissing the amended motion, the district court concluded that

Gonzalez’s April 11, 2008 motion was “subject to dismissal as being the same



      2
          An appeal of that denial is pending in this court.

                                            3
claim previously raised by the defendant in his motion filed on April 7, 2008.” Id.

at 2. Moreover, the court determined that Gonzalez’s April 11, 2008 amended

pleading could not properly be construed as a second or successive § 2255

pleading “because it fails to allege that his sentence was imposed in violation of

the Constitution or laws of the United States or that it is otherwise subject to

collateral attack.” Id.

      Gonzalez’s pro se appeal of that denial is now before us.

                                   II. Discussion

      Treating his pro se pleading liberally, we construe it as an unauthorized

successive § 2255 petition because his allegations are essentially Booker and

Apprendi-style constitutional claims. 3 Where a federal prisoner seeks to test the

validity of a judgment and sentence, the exclusive remedy is that provided for in

§ 2255, unless that remedy is inadequate or ineffective. Bradshaw v. Story, 86

F.3d 164, 166 (10th Cir. 1996). Gonzalez has styled his motion as a habeas

filing, and we construe it as such. And because judgment has already been

entered on Gonzalez’s first § 2255 petition, it cannot be disputed that this is a




      3
         He argues: The “court unconstitutionally accepted a guilty plea . . .
without actual notice of the essential elements [actual drug amounts] of the
offense . . . .” Aplt. Br. 1. He also claims that “[t]o be constitutionally viable the
criminal indictment must allege a Detectable Amount “OR MORE” for the court
to impose a sentence in excess of the mandatory minimum.” Id. at 2.

                                           4
second or successive § 2255 petition. See United States v. Nelson, 465 F.3d 1145,

1149 (10th Cir. 2006). 4

      To file a successive or second petition for habeas relief, Gonzalez is

required to first obtain authorization from this court. See § 2255(h); 28 U.S.C.

§ 2244(b)(3); Nelson, 465 F.3d at 1148 (“Under Rule 9 of the Rules Governing

Section 2255 Proceedings, ‘[b]efore presenting a second or successive motion, the

moving party must obtain an order from the appropriate court of appeals

authorizing the district court to consider the motion, as required by 28 U.S.C.

§ 2255, para. 8.’”). Gonzalez has not done so, nor does he assert that his claims




      4
          Gonzalez appears to argue that his amended motion relates back to his
initial habeas petition, pursuant to Federal Rule of Civil Procedure 15. Under
some circumstances, a habeas petition may be amended or supplemented as
provided in the Federal Rules. See 28 U.S.C. § 2242. In 2005, the Supreme
Court held in Mayle v. Felix, 545 U.S. 644, 654–664 (2005), that under Rule 15, a
habeas petitioner may amend his petition to add claims after the statute of
limitations has expired, but those additional claims will not “relate back” if they
did not arise out of the “conduct, transaction, or occurrence” set forth in his
original timely filed petition.

       Here, we need not address whether Gonzalez’s claims arose out of the same
“conduct, transaction, or occurrence,” as judgment had been entered on
Gonzalez’s initial habeas petition long before he filed this amended motion: not
only had the district court ruled on his initial motion, but we had affirmed the
district court’s ruling denying Gonzalez’s habeas claim. See Nelson, 465 F.3d at
1148–49 (holding that a motion to amend and supplement a § 2255 motion filed
after judgment was entered must be treated as a successive § 2255 motion
requiring prior circuit court authorization). Thus, the proper way to construe the
amended motion is as a successive habeas petition.

                                         5
meet the authorization standards set forth in § 2255(h). Thus, the district court

lacked jurisdiction over the matter. See Nelson, 465 F.3d at 1148.

      Consequently, we vacate the district court’s order and remand to the district

court with directions to dismiss for lack of jurisdiction. See In re Cline, 531 F.3d



1249, 1251–53 (10th Cir. 2008). Gonzalez’s motion to proceed in forma pauperis

on appeal is DENIED.


                                                    Entered for the Court


                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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