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

                             FOR THE TENTH CIRCUIT                              April 13, 2018
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 18-2000
                                                   (D.C. Nos. 1:17-CV-00874-JAP &
ELLISTON CALLWOOD,                                    1:92-CR-00552-JAP-LF-1)
                                                               (D. N.M.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE and MORITZ, Circuit Judges.
                 _________________________________

       Elliston Callwood requests a certificate of appealability (COA) to appeal from the

district court’s dismissal of his post-judgment motions as unauthorized second or

successive 28 U.S.C. § 2255 motions. We deny a COA and dismiss this matter.

       Mr. Callwood unsuccessfully pursued a direct appeal and a § 2255 motion after

being convicted of drug and firearms offenses. Since then, he has filed numerous

motions before the district court and this court. This matter concerns a “Motion Under

28 U.S.C. § 2255 to Vacate, Set Aside, or Correct to Restore a Direct Appeal—

Reinstate” and a “Motion to Correct Error / Motion to Take Judicial Notice” challenging

his firearms convictions. Mr. Callwood asserted his new § 2255 motion was “not a

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
successive motion as he has never before moved any Court to reinstate his Direct Appeal

rights[.]” R., Vol. 3 at 35. The district court disagreed, determined the motions were

unauthorized second or successive § 2255 motions, and dismissed them for lack of

jurisdiction. See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251-52 (10th Cir.

2008) (per curiam).

       To appeal from the district court’s decision, Mr. Callwood must obtain a COA.

See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). That requires him to

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, 484 (2000). Before this court, Mr. Callwood focuses on the

merits of his underlying claims regarding his firearms convictions. We do not consider

the merits, however, because no reasonable jurist could debate the district court’s

procedural decision to dismiss the motions for lack of jurisdiction.

       Having had several post-judgment motions dismissed by the district court and at

least three motions for authorization denied by this court, Mr. Callwood should be well

aware that he requires this court’s prior authorization before filing another § 2255 motion

in the district court. See 28 U.S.C. § 2255(h). Equally, he should be well aware that the

district court does not have jurisdiction to consider an unauthorized second or successive

§ 2255 motion. See Cline, 531 F.3d at 1251. Because Mr. Callwood challenged the

validity of his firearms convictions by alleging error in previous rulings and arguing

grounds for relief from the convictions, no reasonable jurist could debate the district

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court’s decisions that the claims were subject to the restrictions of § 2255(h).

See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (holding that a motion that “attacks the

federal court’s previous resolution of a [habeas] claim on the merits” is subject to the

restrictions on second or successive motions (emphasis omitted)); United States v.

Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) (stating that “[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 the laws of the United States” (internal quotation marks

omitted)). Further, no reasonable jurist could debate that dismissal rather than transfer

was an appropriate disposition. See Cline, 531 F.3d at 1252.

       Mr. Callwood’s motion to proceed without prepayment of costs and fees is

granted. But under 28 U.S.C. § 1915(a) and (b)(1), only prepayment is excused, and

Mr. Callwood remains obligated to pay the full amount of costs and fees. Accordingly,

he shall continue making partial payments until that obligation is satisfied. A COA is

denied and this matter is dismissed.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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