                                                                            FILED
                                                                United States Court of Appeals
                                     PUBLISH                            Tenth Circuit

                     UNITED STATES COURT OF APPEALS                     May 14, 2013

                                                                    Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                        Clerk of Court


In re: KEITH V. WEATHERSBY,                               No. 13-3077
                                               (D.C. Nos. 2:08-CV-02081-JWL &
               Movant.                              2:98-CR-20076-JWL-3)
                                                           (D. Kan.)


                                      ORDER


Before HARTZ, TYMKOVICH, and O’BRIEN, Circuit Judges.

PER CURIAM.

      Keith V. Weathersby has filed a motion for authorization to file a second or

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

Because it does not appear that the § 2255 motion Mr. Weathersby seeks to file

would be a “second or successive” motion subject to the gatekeeping provisions of

28 U.S.C. § 2255(h) and § 2244(b)(3), we dismiss the motion for authorization as

unnecessary.

      Mr. Weathersby was convicted of two federal drug offenses in March 2002

and sentenced to 292 months in prison. We affirmed his conviction and sentence on

direct appeal. See United States v. Weathersby, 89 F. App’x 683 (10th Cir. 2004).

Mr. Weathersby filed a motion for relief under § 2255 in February 2008, which the

district court dismissed as untimely. Mr. Weathersby did not appeal that dismissal,
but he did file a Rule 60(b) motion in the district court in May 2009. The district

court denied two of the claims on the merits and construed a third claim as an

unauthorized second or successive claim, which it transferred to this court for

possible authorization. Rather than seek authorization to file the claim, however,

Mr. Weathersby filed a motion for remand, which we denied. See In re Weathersby,

No. 09-3304, Order of Jan. 19, 2010. He then filed an appeal of the district court’s

denial of his Rule 60(b) motion, which we dismissed as untimely. See United States

v. Weathersby, No. 10-3059, Order of Apr. 16, 2010.

      Mr. Weathersby now wishes to file another § 2255 motion to challenge his

sentence. He alleges that, after he filed his first § 2255 motion, he successfully

attacked six California convictions that were used in calculating his criminal history

category for his federal sentence, and those state convictions have since been

expunged. He therefore desires to file another § 2255 motion to reopen his federal

sentence. We have held that “[i]f a defendant successfully attacks state sentences, he

may then apply for reopening of any federal sentence enhanced by the state

sentences.” United States v. Cox, 83 F.3d 336, 339 (10th Cir. 1996); see also

Johnson v. United States, 544 U.S. 295, 303 (2005) (acknowledging Supreme Court’s

previous holding “that a defendant who successfully attacked his state conviction in

state court or on federal habeas review could then apply for reopening of any federal

sentence enhanced by the state sentences”) (internal quotation marks omitted)).




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       In the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress

placed strict limitations on “second or successive” motions under § 2255, requiring

that a defendant obtain circuit-court authorization before filing a second or

successive motion and limiting the grounds for authorization. 28 U.S.C. § 2255(h).

We refer to these limitations as gatekeeping provisions, and similar limitations apply

to second or successive habeas petitions filed under 28 U.S.C. § 2254, see id.

§ 2244(b). Mr. Weathersby assumes that the § 2255 motion he now seeks to file is a

“second or successive” motion within the meaning of AEDPA and that he therefore

needs this court’s authorization to file it. But based on the factual representations in

his motion for authorization, we conclude otherwise.

       The term “second or successive” is not defined in § 2255 or elsewhere in

AEDPA. We know, however, that it does not simply refer to every § 2255 motion

filed second in time to a previous § 2255 motion. See Panetti v. Quarterman,

551 U.S. 930, 944 (2007) (“The Court has declined to interpret ‘second or

successive’ as referring to all § 2254 applications filed second or successively in

time, even when the later filings address a state-court judgment already challenged in

a prior § 2254 application.”). In Panetti, the Supreme Court concluded that a claim

that was not ripe at the time the state prisoner filed his first federal habeas petition

would not be considered “second or successive” under § 2244(b) if the petitioner

asserted the claim in a later habeas petition once it became ripe. Id. at 947; see also

Magwood v. Patterson, 130 S. Ct. 2788, 2796 (2010) (describing Panetti as having


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“creat[ed] an exceptio[n] to § 2244(b) for a second application raising a claim that

would have been unripe had the petitioner presented it in his first application”

(second alteration in original) (internal quotation marks omitted)).

       As for the type of § 2255 claim that Mr. Weathersby now wishes to pursue, the

Supreme Court has held that relief under § 2255 is not available until the state

conviction used to enhance the federal sentence is vacated. Johnson, 544 U.S.

at 305. It is the fact of the state court vacatur that gives rise to the federal claim; the

facts supporting the challenge to the state conviction do not themselves provide the

basis for the § 2255 claim. Id. at 305-07. Mr. Weathersby alleges in his motion that

six California convictions that were used to calculate his criminal history category

for his federal sentence were vacated after his first § 2255 motion was disposed of. If

this is true,1 then the basis for his proposed § 2255 claim did not exist before the

conclusion of his earlier § 2255 motion.

       The Fifth Circuit in Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009),

considered whether a habeas petitioner must obtain prior authorization to file a

second petition that is based on a defect that did not occur until after the first habeas




1
       For purposes of this proceeding, we accept as true Mr. Weathersby’s allegation
that his state convictions were vacated after his previous § 2255 proceedings were
concluded. If, in fact, they were vacated before that time and could have been raised
in his earlier proceedings, then a § 2255 motion seeking to raise their vacatur now
would be second or successive and would require prior authorization to proceed.

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proceedings were concluded. Looking to its own and to the Supreme Court’s

jurisprudence, the court concluded that

      if the purported defect existed, or the claim was ripe, at the time of the
      prior petition, the later petition is likely to be held successive even if the
      legal basis for the attack was not. If, however, the purported defect did
      not arise, or the claim did not ripen, until after the conclusion of the
      previous petition, the later petition based on that defect may be
      non-successive.

Id. at 222; see also United States v. Obeid, 707 F.3d 898, 903 (7th Cir. 2013) (“[A]

petition or motion based on a claim that did not become ripe any earlier than until

after the adjudication of the petitioner’s first petition or motion is not ‘second or

successive’ within the meaning of Sections 2244 and 2255(h).”); In re Jones,

652 F.3d 603, 605 (6th Cir. 2010) (holding § 2254 claim that was not ripe when first

petition was filed, because it was based on events that had not yet occurred, was not a

“second or successive” claim and so did not need circuit court’s prior authorization).

      More recently, in Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011),

the Eleventh Circuit considered whether a federal prisoner in the same position as

Mr. Weathersby—i.e., one who, after the conclusion of his first § 2255 motion,

successfully attacked state convictions that had been used to enhance his federal

sentence—had to obtain prior authorization to file a § 2255 motion seeking to reopen

his federal sentence based on the state-court vacatur order. Relying on the reasoning

of Johnson and Leal Garcia, the court concluded that, because the basis for the claim

the defendant sought to present did not exist until the proceedings on his first § 2255

motion were finished, the claim was not “second or successive” and did not require

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the court’s prior authorization. Stewart, 646 F.3d at 863-65. We find the reasoning

of the Eleventh Circuit persuasive.

      Accordingly, we conclude that if, as Mr. Weathersby represents, the state court

did not vacate his convictions until after his first § 2255 proceedings were concluded,

so the basis for his proposed § 2255 claim did not exist when those proceedings were

ongoing, his claim to reopen his federal sentence based on the state court’s vacatur is

not “second or successive” and does not require our prior authorization. In so

concluding, we express no opinion on whether Mr. Weathersby’s new claim would be

timely, see Johnson, 544 U.S. at 308-11 (holding § 2255’s statute of limitations runs

from date defendant received notice of vacatur, but only if defendant diligently

pursued vacatur of state conviction following entry of federal judgment), or on

whether the claim would have any merit, see Cox, 83 F.3d at 339 (noting that “the

basis for the expungement or dismissal of the prior offenses” will determine “whether

they may be included in calculating defendant’s criminal history”); United States v.

Pettiford, 612 F.3d 270, 277-78 (4th Cir. 2010) (concluding defendant was not

entitled to § 2255 relief where vacatur of prior state convictions would not affect

length of federal sentence).

      Mr. Weathersby’s motion for authorization is dismissed as unnecessary.




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