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

                           FOR THE TENTH CIRCUIT                      February 26, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 14-2169
                                               (D.C. Nos. 1:03-CR-00477-MV-1 &
ERIC LAMONT JOHNSON,                               1:11-CV-00037-MV-LAM)
                                                            (D. N.M.)
             Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.


      Eric Lamont Johnson seeks a certificate of appealability (COA) to appeal from

the district court’s dismissal of his motion under 28 U.S.C. § 2255(f)(4) as an

unauthorized second or successive 28 U.S.C. § 2255 motion. See 28 U.S.C.

§ 2255(h). We deny a COA and dismiss this matter.

      Mr. Johnson pleaded guilty to possessing a firearm during or in relation to a

drug trafficking crime and was sentenced to 180 months’ imprisonment. See United

States v. Johnson, 376 F. App’x 858, 859 (10th Cir. 2010) (direct appeal). After

unsuccessfully pursuing relief under § 2255, see United States v. Johnson,

*
       This order is not binding precedent except under the doctrines of law of the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.
529 F. App’x 876, 876, 879 (10th Cir. 2013) (denying a COA), cert. denied,

134 S. Ct. 1041 (2014), he filed a motion under Fed. R. Civ. P. 60(b) claiming that he

was entitled to relief under Bailey v. United States, 516 U.S. 137 (1995). The district

court dismissed the motion as an unauthorized second or successive § 2255 motion.

Mr. Johnson then sought authorization from this court to pursue relief under Bailey.

We denied authorization, noting that Bailey had been decided years before

Mr. Johnson’s conviction. See In re Johnson, No. 14-2087, at 2-3 (10th Cir. June 6,

2014) (unpublished order). Mr. Johnson’s most recent filing is his “Subsequent

Motion Invoking the Power of U.S.C. 2255(f)(4),” which again relies upon Bailey,

and which the district court dismissed as an unauthorized second or successive

§ 2255 motion.

      Mr. Johnson must obtain a COA to appeal. See United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008). For a COA, he 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,

484 (2000). But no reasonable jurist would find the district court’s procedural

disposition debatable.

      “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 [the


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sentence] is otherwise subject to collateral attack.” United States v. Nelson, 465 F.3d

1145, 1148 (10th Cir. 2006) (internal quotation marks omitted). “It is the relief

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

motion.” Id. at 1149. It is apparent that Mr. Johnson seeks relief in the nature of a

§ 2255 motion. He points out that he is relying on § 2255(f)(4). But § 2255(f) does

not allow him to evade § 2255(h)’s restrictions. Rather, he must meet both

subsections’ requirements. See Prost v. Anderson, 636 F.3d 578, 591 (10th Cir.

2011) (noting potential effects of the interaction between §§ 2255(f)(3) and

2255(h)(2)).

      Mr. Johnson’s district court filing has not been authorized; to the contrary, as

noted above, this court has denied him authorization to bring claims based on Bailey.

Accordingly, no reasonable jurist could debate the district court’s decision to dismiss

the “Subsequent Motion” for lack of jurisdiction. Mr. Johnson complains that the

district court did not address his arguments regarding a miscarriage of justice, but it

was not within the court’s power to do so. “[I]f the prisoner’s pleading must be

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

jurisdiction to deny the relief sought in the pleading.” Nelson, 465 F.3d at 1148.

      We deny a COA and dismiss this matter.

                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk


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