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

                                                                            April 29, 2016
                             FOR THE TENTH CIRCUIT
                         _________________________________               Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-6019
                                                  (D.C. No. 5:90-CR-00096-W-1)
ALFRED JAMES PRINCE,                                      (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                                      ORDER
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Alfred James Prince, proceeding pro se,1 appeals from the denial of his “Writ

of Cert[io]rari,” which we construe as a successive motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. Exercising jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), we vacate the district court’s denial of Mr. Prince’s motion and

deny Mr. Prince’s implied request for authorization to file a successive § 2255

motion. We also deny Mr. Prince’s motion for in forma pauperis (“ifp”) status.


      1
          Although we liberally construe pro se filings, see Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam), we may not “assume the role of advocate,” Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (quotations omitted); see also
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009), and we do not “fashion
. . . arguments for [pro se litigants],” United States v. Fisher, 38 F.3d 1144, 1147
(10th Cir. 1994).
                                 I. BACKGROUND

      In 1990, Mr. Prince was convicted of bank robbery by use of a life-threatening

weapon, 18 U.S.C. § 2113(a), (d), and use of a firearm in the commission of a felony,

18 U.S.C. § 924(c)(1). He was sentenced to 340 months in prison. We affirmed his

conviction on direct appeal. United States v. Prince, 938 F.2d 1092, 1095 (10th Cir.

1991). The Supreme Court denied a petition for writ of certiorari. Prince v. United

States, 502 U.S. 961 (1991).

      After his direct appeal became final, Mr. Prince challenged his convictions in

various unsuccessful § 2255 motions. See United States v. Prince, 186 F. App’x 840,

841 (10th Cir. 2006) (unpublished) (denying authorization to file a second or

successive § 2255 motion). He subsequently sought authorization to file another

§ 2255 motion; the district court transferred the matter to this court, and we denied

Mr. Prince’s request for authorization. See United States v. Prince, No. 07-6030

(10th Cir. Apr. 6, 2007).

      On January 5, 2016, Mr. Prince filed a “Writ of Cert[io]rari” in district court,

arguing his conviction violated the Fifth and Sixth Amendments because it was based

on unreliable information from a cooperating witness. The district court denied his

motion, holding, “[t]o the extent, if any, the Court has jurisdiction to consider

Prince’s request at this date, the Court, upon review of the record, finds

reexamination of any issue raised by Prince in his most recent filing is not

warranted.” App. at 25.



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                                   II. DISCUSSION

      We construe Mr. Prince’s “Writ of Cert[io]rari” as an attempt to bring a

successive § 2255 motion because it raises Fifth and Sixth Amendment challenges to

his conviction. See In re Cline, 531 F.3d 1249, 1253 (10th Cir. 2008) (“It is the relief

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

motion.” (quotations and brackets omitted). “A district court does not have

jurisdiction to address the merits of a second or successive § 2255 . . . claim until

this court has granted the required authorization.” Id. at 1251; see 28 U.S.C.

§ 2255(h). Mr. Prince failed to obtain this court’s authorization before filing his

§ 2255 motion. The district court consequently lacked subject matter jurisdiction to

consider that motion. We therefore vacate the district court’s order. See Spitznas v.

Boone, 464 F.3d 1213, 1219 (10th Cir. 2006) (explaining that, when a district court

denies an unauthorized second or successive § 2255 motion, we vacate the order

because the district court lacked subject matter jurisdiction); Berryhill v. Evans, 466

F.3d 934, 938 (10th Cir. 2006) (same).

      Nevertheless, we construe Mr. Prince’s appeal brief as an application to file a

successive §2255 motion. We may authorize a successive § 2255 motion if it is

based on (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



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collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C.

§ 2255(h).

      Mr. Prince cites no newly discovered evidence; on the contrary, he claims the

evidence used in his prosecution was unreliable. He also cites no new rule of law

that would apply retroactively to his successive § 2255 motion. We therefore deny

his request for authorization to file a successive § 2255 motion.

                                 III. CONCLUSION

      For the foregoing reasons, we vacate the district court’s decision denying Mr.

Prince’s § 2255 motion and deny Mr. Prince’s implied application for authorization

to file a successive § 2255 motion in district court. We also deny Mr. Prince’s

motion for ifp status.

                                               Entered for the Court


                                               ELISABETH A. SHUMAKER, Clerk




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