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

                             FOR THE TENTH CIRCUIT                                May 4, 2020
                         _________________________________
                                                                             Christopher M. Wolpert
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 19-3268
                                                    (D.C. Nos. 2:19-CV-02530-KHV &
 MENDY READ-FORBES,                                      2:12-CR-20099-KHV-1)
                                                                 (D. Kan.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY ∗
                   _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and HOLMES, Circuit Judges.
                 _________________________________

       Mendy Read-Forbes, a federal prisoner proceeding through counsel, seeks a

certificate of appealability (COA) to appeal the district court’s order dismissing her

28 U.S.C. § 2255 motion as an unauthorized second or successive § 2255 motion for lack

of jurisdiction. We deny a COA and dismiss this matter.

       Ms. Read-Forbes pleaded guilty to one count of conspiracy to commit money

laundering in violation of 18 U.S.C. § 1956(a)(3)(B). She was sentenced to 240 months’

imprisonment. Upon the government’s motion, we enforced the appeal waiver in her



       ∗
         This order is not binding precedent except under the doctrines of law of the case,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.
plea agreement and dismissed her direct appeal. Ms. Read-Forbes next filed her first

§ 2255 motion based on ineffective assistance of counsel. The district court denied the

motion, and we denied a COA. In 2018, Ms. Read-Forbes sought authorization from this

court to file a second or successive § 2255 motion in district court, relying on newly

discovered evidence that privileged attorney-client communications were recorded while

she was an inmate at Leavenworth prison in violation of her Sixth Amendment rights.

We denied authorization because she failed to show “this evidence, ‘if proven and viewed

in light of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found her guilty of the

offense.’” Order at 2, No. 18-3146, In re Read-Forbes (10th Cir. July 26, 2018)

(alteration omitted) (quoting 28 U.S.C. § 2255(h)(1)). On September 9, 2019, she filed

the underlying § 2255 motion in district court, again arguing that the improper recording

of privileged attorney-client communications violated her Sixth Amendment rights. The

district court determined that the motion was an unauthorized second or successive

§ 2255 motion and dismissed it for lack of jurisdiction.

       Ms. Read-Forbes now seeks a COA under 28 U.S.C. § 2253(c) to appeal from that

dismissal. “A certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

Because the district court dismissed her petition on procedural grounds, to obtain a COA

Ms. Read-Forbes must demonstrate both “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

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procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We need not reach the

constitutional component of this standard since it is apparent Ms. Read-Forbes cannot

meet her burden on the procedural one. See id. at 485.

       A prisoner may not file a second or successive § 2255 motion without

authorization from this court. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). The district

court lacks jurisdiction to consider the merits of a second or successive § 2255 motion

absent authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

       In her motion filed in district court, Ms. Read-Forbes claimed the Kansas U.S.

Attorney’s Office violated her Sixth Amendment rights by improperly obtaining

32 attorney-client calls between her and her attorneys. This evidence was newly

discovered as part of another criminal matter related to allegations of improper recordings

at Leavenworth prison. In that matter, Chief Judge Robinson made findings in

August 2019 regarding the government’s possession of recorded phone calls between

Ms. Read-Forbes and her attorneys. In her motion, Ms. Read-Forbes acknowledged that

she already raised this issue in her unsuccessful motion for authorization to file a

successive motion. But her most recent motion seems to include additional

attorney-client calls.

       The district court recognized that this new evidence might support a legal

challenge that the government violated her Sixth Amendment rights. But “[b]ecause

[Ms. Read-Forbes] did not receive authorization from the Tenth Circuit” to file her

§ 2255 motion, Aplt. App. at 84, the district court dismissed the motion for lack of

jurisdiction and denied a COA.

                                              3
       In her application to this court, Ms. Read-Forbes fails to even address the standard

for issuance of a COA, let alone apply it. She instead devotes her briefing to arguing the

merits of her Sixth Amendment claim and attempting to circumvent the applicable

standard by asking for relief through other means, including declaratory relief pursuant to

28 U.S.C. §§ 2201(a) and 2202; a writ of audita querela pursuant to the All Writs Act,

28 U.S.C. § 1651; and “more traditional” habeas relief pursuant to 28 U.S.C. § 2241,

Aplt. Opening Br. at 24. Ms. Read-Forbes did not present these avenues of relief to the

district court within the motion under review, so we decline to consider them for the first

time in her COA application. 1 See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir.

2012) (stating our general rule that we will not consider issues for the first time on appeal

absent extraordinary circumstances). Nor do we comment on her ability to obtain

authorization under § 2255(h) to file a successive § 2255 motion based on any additional

newly discovered evidence; she has not sought such authorization from this court under

§ 2255(h)(2).

       We conclude that reasonable jurists could not debate that the district court was

correct in its procedural ruling that Ms. Read-Forbes’s motion was an unauthorized

second or successive § 2255 motion over which it lacked jurisdiction, and




       1
          We note that Ms. Read-Forbes separately filed a “Petition for Writ of Audita
Querela or Other Appropriate Relief Pursuant to the All Writs Act 28 U.S.C. 1651” in the
district court, which remains pending. She filed that petition after she filed the § 2255
motion that underlies this matter. The district court has stayed that motion pending our
decision in this appeal and will consider her claims in the first instance.
                                              4
Ms. Read-Forbes has not offered any argument to the contrary. Accordingly, we deny a

COA and dismiss this matter.

       We grant Ms. Read-Forbes’s motion to proceed without prepayment of costs or

fees. Nevertheless, she is required to pay all filing and docketing fees to the Clerk of the

District Court. Only prepayment of fees is waived, not the fees themselves. See

28 U.S.C. § 1915(a)(1). We deny her motion to seal as moot because the court seals

motions to proceed without prepayment of costs or fees as a matter of course.


                                              Entered for the Court



                                              CHRISTOPHER M. WOLPERT, Clerk




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