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

                             FOR THE TENTH CIRCUIT                            July 5, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-6361
                                                   (D.C. No. 5:05-CR-00168-F-4)
TUYEN VU NGO,                                              (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, McKAY, and MORITZ, Circuit Judges.
                 _________________________________

      In 2005, Tuyen Vu Ngo was indicted on two counts of drug trafficking

involving methlyenedioxymethamphetamine (MDMA), commonly known as ecstasy.

He stipulated at trial that the 201,688 MDMA tablets seized by law enforcement

officials contained 3,4-methlyenedioxymethamphetamine. He was convicted on both

charges and sentenced to twenty years’ imprisonment. His conviction was affirmed

on direct appeal. United States v. Ngo, 226 F. App’x 819 (10th Cir. 2007). He did

not challenge his sentence on direct appeal, but he later filed a motion to vacate

under 28 U.S.C. § 2255, which the district court denied. This court denied him 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         This order is not binding precedent, except under the doctrines of law of the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.
certificate of appealability (COA). United States v. Ngo, 307 F. App’x 242 (10th Cir.

2009).

         In 2015, Mr. Ngo filed a pro se motion purportedly based on Federal Rule of

Civil Procedure 60(b). He argued that the indictment did not identify a controlled

substance listed in Schedule I of 21 U.S.C. § 812 because it specified

methlyenedioxymethamphetamine, not 3,4-methlyenedioxymethamphetamine, as it is

listed in Schedule I, see 21 C.F.R. § 1308.11(d)(11) (including

3,4-methlyenedioxymethamphetamine in Schedule I). He claimed that he first

became aware of this “newly discovered evidence” in November 2014. He contended

that the alleged flaw in the indictment revealed jurisdictional defects, structural error,

a constructively amended indictment, a fatal variance, a defective jury instruction on

reasonable doubt, and a defective jury verdict, all of which entitled him to a ruling

under Federal Rule of Civil Procedure 60(b)(2), (b)(4), and (b)(6) that his conviction

was void for lack of jurisdiction or vagueness. Mr. Ngo requested that the court not

construe the motion as a second or successive § 2255 motion. He later moved to file

a supplemental amendment to his motion.

         The Honorable Tim Leonard granted Mr. Ngo’s motion to file an amendment

to his purported Rule 60(b) motion but ruled that the court lacked jurisdiction over

the motion because Rule 60(b) does not apply in a criminal case. In the alternative,

Judge Leonard reasoned that if construed as a § 2255 motion rather than a true

Rule 60(b) motion, the court would still lack jurisdiction given Mr. Ngo’s failure to

first obtain the certification from this court to file a second or successive § 2255

                                            2
motion that is required under 28 U.S.C. § 2255(h). Judge Leonard added that it was

“not in the interest of justice to transfer [the motion to this court] for authorization.”

R., Vol. I at 18 n.2.

       Mr. Ngo then filed a motion asking the district court to (1) correct, under

Federal Rule of Criminal Procedure 36 and/or Civil Rule 60(a), the use of the wrong

case number in the caption of Judge Leonard’s order; (2) reconsider the disposition

of the purported Rule 60(b) motion because Judge Leonard had permitted Mr. Ngo to

amend the motion under Federal Rule of Civil Procedure 15(a)(1) but then held that

Rule 60(b) was inapplicable in a criminal matter; (3) reconsider the request for a

COA he made in his purported Rule 60(b) motion; and (4) precertify his purported

Rule 60(b) motion to this court in the event it was construed as a second or

successive § 2255 motion.

       The case was reassigned to the Honorable Stephen P. Friot, who granted the

motion to correct the case number that appeared in Judge Leonard’s order but

otherwise denied relief. Judge Friot observed that in requesting reconsideration of

the jurisdictional dismissal of his purported Rule 60(b) motion, Mr. Ngo sought to

change the substance of the dismissal. But that sort of relief was inappropriate under

Federal Rule of Criminal Procedure 36 and Federal Rule of Civil Procedure 60(a),

which are used to correct inadvertent ministerial errors.




                                             3
      Judge Friot next considered whether Mr. Ngo was entitled to relief under

Fed. R. Civ. P. 59(e) for the dismissal of the purported Rule 60(b) motion.1 Judge

Friot determined that because the purported Rule 60(b) motion was in substance a

second or successive § 2255 motion, Judge Leonard had properly ruled that the court

lacked jurisdiction over it absent an order from this court authorizing it through the

procedure set out in 28 U.S.C. § 2244(b). Judge Friot also determined that Judge

Leonard was not authorized to grant Mr. Ngo’s alternative request for

“precertification” of his second or successive § 2255 motion, explaining that only

this court could authorize the filing of such a motion. Judge Friot considered

whether the § 2255 motion should be transferred to this court for authorization but

decided that the interest of justice did not require it because Mr. Ngo’s claims were

unlikely to have merit. Finally, Judge Friot denied a COA as to both Judge

Leonard’s order and Judge Friot’s own order denying relief under Rule 59(e).

      Mr. Ngo filed a notice of appeal from the two orders combined with a request

for a COA, which is necessary to appeal those orders. See United States v. Cobb,

307 F. App’x 143, 144–45 (10th Cir. 2009) (concluding that a COA is necessary to

appeal the denial of a Rule 59(e) motion challenging the denial of a § 2255 motion)2;

United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (holding that a COA


      1
          Judge Friot construed the motion before him as “a true Rule 59(e) motion in
that it challenges Judge Leonard’s procedural ruling, and . . . Judge Leonard’s failure
to address alternative procedural requests made in [Mr. Ngo’s] filings.” R., Vol. I
at 35 n.2.
        2
          We cite our unpublished decision in Cobb only for its persuasive value. See
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           4
is required to appeal an order dismissing a “§ 2255 motion for lack of jurisdiction on

the ground that it is a second or successive motion and unauthorized by the court of

appeals”). A COA can issue only upon “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court resolved

Mr. Ngo’s motions on procedural grounds, he can obtain a COA only by showing

“that jurists of reason would find it debatable whether [his motions] state[] 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). Liberally construing Mr. Ngo’s pro se filings,

Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008), we conclude that he has

not satisfied the procedural aspect of the Slack test. We therefore need not consider

the merits aspect of that test.

       First, reasonable jurists could not debate the conclusion that the purported

Rule 60(b) motion was an unauthorized second or successive § 2255 motion. As

relevant here, 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.”

28 U.S.C. § 2255(a). Although Mr. Ngo claims his purported Rule 60(b) motion

addressed deficiencies in his federal habeas proceeding, that is simply not the case.

His motion attacked the adequacy of his indictment and the trial court’s jurisdiction

under federal law, issues that he did not raise in his first § 2255 motion. This plainly

demonstrates that his motion was a § 2255 motion, not a true Rule 60(b) motion.

                                            5
Compare In re Cline, 531 F.3d 1249, 1253 (10th Cir. 2008) (per curiam) (concluding

that a purported Rule 60(b) motion was an unauthorized second or successive § 2255

motion where the prisoner argued that the trial court “lacked jurisdiction to convict or

sentence him because the indictment did not describe a ‘locus in quo’ where the

alleged violation occurred, did not allege a violation of the Commerce Clause, and

did not show that the federal codes and statutes he was alleged to have violated were

enacted by Congress”), with United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir.

2006) (rejecting idea that a motion alleging a sentence is unlawful should be

construed as a true Rule 60(b) motion because it did “not assert[] any procedural

error in the disposition of [the prisoner’s] original habeas motion”). Accordingly, the

conclusion of both district court judges that the motion was an unauthorized second

or successive § 2255 motion over which the district court lacked jurisdiction is not

reasonably debatable. See Cline, 531 F.3d at 1251 (holding that district court lacks

subject matter jurisdiction over unauthorized second or successive § 2255 motion).3

      Second, Judge Friot’s conclusion that the district court lacked the power to

“precertify” his motion to this court is not reasonably debatable. Certification must

come from “a panel of the appropriate court of appeals.” 28 U.S.C. § 2255(h).

      Third, we see no room for reasonable debate as to Judge Friot’s determination

that transferring the motion to this court was not in the interest of justice. Judge Friot

based that determination on his view that Mr. Ngo’s claims were unlikely to have

      3
         Because it is not reasonably debatable that the district court lacked
jurisdiction, there is no merit to Mr. Ngo’s suggestion that the court should have
ordered a response from the government and reviewed his claims on the merits.
                                            6
merit, which is one of the factors bearing on the interest-of-justice inquiry, Cline,

531 F.3d at 1252. However, we conclude that a more fundamental procedural

consideration counseled against transfer, and we may deny a COA on such a ground

even though Judge Friot did not rely on it, see Davis v. Roberts, 425 F.3d 830, 834

(10th Cir. 2005) (“[W]e may deny a COA if there is a plain procedural bar to habeas

relief, even though the district court did not rely on that bar.”).4

       Authorization of a second or successive § 2255 motion requires an appropriate

appellate panel to certify that the motion contains either “(1) newly discovered

evidence that, 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 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)(1)–(2). Mr. Ngo’s

recent discovery that the indictment omitted the “3,4-” prefix from MDMA is not

“newly discovered evidence” bearing on his innocence that might satisfy

§ 2255(h)(1), but instead a legal argument that has been available to him since the

indictment was filed in 2005. And he has not shown that reasonable jurists could


       4
         Judge Leonard provided no express reason for declining transfer, but we
consider his decision not reasonably debatable for the same reasons Judge Friot’s
refusal to transfer the motion was not reasonably debatable. Mr. Ngo claims that
transfer is mandatory, but we firmly rejected that notion in Cline, stating that when
confronted with an unauthorized second or successive § 2255 claim, “the district
court may transfer the matter to this court if it determines it is in the interest of
justice to do so under [28 U.S.C.] § 1631, or it may dismiss the motion or petition for
lack of jurisdiction,” 531 F.3d at 1252 (emphasis added).
                                             7
debate whether his motion met these standards. His substantive argument does not

rely on any new, retroactively-applicable rule of constitutional law that would satisfy

§ 2255(h)(2). Denial of transfer was therefore not reasonably debatable because

there was “no risk that a meritorious successive claim [would] be lost.” Cline,

531 F.3d at 1252.5

       We deny a COA and dismiss this matter. Mr. Ngo’s motion to file a reply

brief out of time is granted. Mr. Ngo’s application to proceed on appeal in forma

pauperis is denied as moot, and we remind Mr. Ngo of his obligation to pay all filing

and docketing fees in full to the district court clerk.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




       5
         Nothing in this order should be construed as a denial of § 2255(h)
certification. If Mr. Ngo wishes to seek such certification, he must file a motion for
authorization as required by 28 U.S.C. § 2244(b)(3)(A).

                                             8
