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

                             FOR THE TENTH CIRCUIT                            July 15, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-1493
                                                  (D.C. No. 1:11-CR-00068-JLK-1)
SEAN MICHAEL SCOTT,                                          (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                  _________________________________

      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Defendant Sean Scott pled guilty to two child pornography possession counts

in the U.S. District Court for the District of Colorado and was sentenced to 120

months of imprisonment in February 2012. He did not appeal.




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      In January 2013, Defendant filed a motion to vacate his sentence under 28

U.S.C. § 2255. The district court denied the motion, and Defendant again did not

appeal.

      In August 2014, Defendant filed a document entitled “Motion Factually

Challenging the Plaintiff’s Standing and the Subject Matter Jurisdiction of the Court

Under Article III, Section 2 of the Constitution for the United States of America[,]

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(h)(3).” (R. at 291 (capitalization

standardized).) The district court denied this motion, finding that it sought no

cognizable form of relief. Defendant now seeks to appeal the denial of his motion.

      In his motion, Defendant contends his conviction must be vacated for lack of

Article III standing. When a prisoner files a second post-judgment motion after

judgment has already been entered on an initial § 2255 motion, the motion “is treated

like a second-or-successive § 2255 motion—and is therefore subject to the

authorization requirements of § 2255(h)—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). Defendant’s instant motion falls under this rule—it is a second post-judgment

motion which asserts claims of error in his conviction and seeks relief which may

only be granted pursuant to § 2255. His motion must therefore be treated as a

successive § 2255 motion, regardless of how it was labelled.

      “[A] second or successive § 2255 motion cannot be filed in district court

without approval by a panel of this court. As a result, if the prisoner’s pleading must

be treated as a second or successive § 2255 motion, the district court does not even

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have jurisdiction to deny the relief sought in the pleading.” United States v. Nelson,

465 F.3d 1145, 1148 (10th Cir. 2006). Thus, the district court lacked jurisdiction to

rule on Defendant’s second motion for relief from his conviction.

      As we did in Nelson, we will treat Defendant’s notice of appeal and appellate

brief as an implied application to this court for leave to file a successive § 2255

motion. See id. at 1149. We may grant such authorization only if the successive §

2255 motion demonstrates either (1) newly discovered evidence that, if proven,

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

factfinder would have found the movant 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(h).

      Defendant’s motion satisfies neither of these conditions, and we therefore

DENY his implied request for leave to file a successive § 2255 motion. Because the

district court lacked jurisdiction to rule on his unauthorized successive § 2255

motion, we VACATE the district court’s judgment. Defendant’s motion to proceed

in forma pauperis on appeal is GRANTED. The government’s motion to dismiss is

DENIED.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




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