                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 17, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

    v                                                    No. 11-4064
                                             (D.C. Nos. 2:05-CR-00616-BSJ-1 and
    DARREN BRAD WEST,                               2:10-CV-00716-BSJ)
                                                           (D. Utah)
               Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, EBEL, and MATHESON, Circuit Judges.



        Darren Brad West, proceeding pro se, 1 seeks a certificate of appealability

(COA) to appeal the district court’s dismissal for lack of jurisdiction of his

motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. 2 We

DENY Mr. West’s application for a COA and DISMISS his appeal.

*
       This order is not binding precedent except under the doctrines of law of the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.
1
      We liberally construe Mr. West’s pro se pleadings. See United States v.
Shipp, 589 F.3d 1084, 1088 (10th Cir. 2009).
2
       Although Mr. West originally filed a motion to modify, correct, and/or
reduce his sentence under 18 U.S.C. § 3582, the district court construed the
motion as a request for § 2255 relief. Mr. West now agrees that he is seeking
relief from his sentence through § 2255.
                                         I.

      In 2006, Mr. West pleaded guilty to and was convicted of two

methamphetamine-related charges in violation of 21 U.S.C. § 841(c): knowingly

possessing phosphorus and iodine and knowing or having reason to know that the

chemicals would be used to manufacture methamphetamine. He was sentenced to

108 months’ imprisonment. Mr. West appealed his sentence, asserting that the

district court erred in using U.S.S.G. § 2D1.1(c)(2), instead of § 2D1.11, to set his

offense level; and (2) the district court erred in determining the amount of

methamphetamine that could be produced from the iodine. Rejecting these

assertions, this court affirmed. See United States v. West, 257 F. App’x 76, 78-80

(10th Cir. 2007).

      Thereafter, in February 2009, Mr. West filed a § 2255 motion asserting that

his trial counsel was ineffective. On April 16, 2009, the district court denied

relief. Mr. West did not appeal.

      In July 2010, Mr. West filed a motion to modify, correct, and/or reduce his

sentence under 18 U.S.C. § 3582. He contended that (1) he was actually innocent

of the imposed sentence because it was improperly enhanced under § 2D1.1 as

there was no admission or jury finding that anyone manufactured or attempted to

manufacture methamphetamine; (2) his sentence was null and void because the

district court lost jurisdiction; and (3) the sentencing factors were manipulated.

Recognizing that Mr. West’s motion challenged the lawfulness of his sentence,

                                         -2-
the court decided that he could only obtain relief in a § 2255 proceeding. The

court therefore deemed his filing to be an unauthorized second or successive

§ 2255 motion. See 28 U.S.C. § 2255(h) (“A second or successive § 2255 motion

must be certified as provided in section 2244 by a panel of the appropriate court

of appeals . . . .”); id. § 2244(b)(3)(A) (“Before a second or successive

application permitted by this section is filed in the district court, the applicant

shall move in the appropriate court of appeals for an order authorizing the district

court to consider the application.”). Declining to transfer the motion to this court,

the district court dismissed it for lack of jurisdiction on November 15, 2010. See

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

      On April 4, 2011, Mr. West filed a notice of appeal indicating that he

sought to appeal the 2009 denial of § 2255 relief. Mr. West also filed a motion

for a COA to appeal the 2010 decision. The district court denied a COA for lack

of jurisdiction.

                                           II.

      We first consider whether Mr. West’s appeal is timely. We “can exercise

jurisdiction only if a notice of appeal is timely filed.” Allender v. Raytheon

Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006). When the United States is a

party, a timely notice of appeal must be filed within sixty days after entry of final

judgment. Fed. R. App. P. 4(a)(1)(B). If no separate final judgment is entered, a




                                          -3-
timely notice of appeal must be filed within 150 days of the district court’s

decision. Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii).

      Mr. West sought to appeal the 2009 denial of § 2255 relief nearly two years

after the district court entered judgment. An appeal from the 2009 denial of

§ 2255 relief is untimely. Although no separate judgment was filed, Mr. West

filed his notice of appeal more than 150 days after entry of the order denying

§ 2255 relief.

      Mr. West sought to appeal the 2010 dismissal for lack of jurisdiction more

than four and a half months after the district court filed its decision. An appeal

with respect to that dismissal is not untimely, because the district court did not

enter a separate judgment and Mr. West filed his notice of appeal less than 150

days after the denial of § 2255 relief. We therefore proceed to the merits of

Mr. West’s COA application with respect to the 2010 decision.

                                         III.

      A COA is a jurisdictional prerequisite to our review of the district court’s

decision. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). We will issue

a COA “only if [Mr. West] has made a substantial showing of the denial of a

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

his § 2255 motion on procedural grounds, we will grant a COA only if he “shows,

at least, that jurists of reason would find it debatable whether the [motion] states

a valid claim of the denial of a constitutional right and that jurists of reason

                                          -4-
would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      We conclude that Mr. West has failed to make this showing. Under the

circumstances of this case, it is not debatable that the district court, when

presented with an unauthorized second or successive application, correctly

dismissed it for lack of jurisdiction. This is so because no reasonable jurist could

debate the correctness of the district court’s conclusion that Mr. West had failed

to obtain authorization from this court to file a second or successive § 2255

motion alleging a claim based on “newly discovered evidence” or “a new rule of

constitutional law.” 28 U.S.C. § 2255(h) (setting forth requirements for filing

second or successive § 2255 motion). Rather, Mr. West’s claims are the same or

similar to the claims he asserted on direct appeal, and are an attempt by him to

challenge the same conviction and sentence he challenged in his first § 2255

motion.




                                          -5-
                                   IV.

     Accordingly, we DENY Mr. West’s application for a COA, and we

DISMISS this appeal.



                                         Entered for the Court,




                                         ELISABETH A. SHUMAKER, Clerk




                                   -6-
