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

                            FOR THE TENTH CIRCUIT                       March 24, 2015

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

             Plaintiff − Appellee,

v.                                                        No. 14-3212
                                                (D.C. Nos. 2:14-CV-02290-CM &
DHEADRY LOYD POWELL,                                 2:05-CR-20067-CM-1)
                                                            (D. Kan.)
             Defendant − Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, EBEL, and MORITZ, Circuit Judges.


      Dheadry Loyd Powell, proceeding pro se, seeks a certificate of appealability

(COA) to appeal from the district court’s dismissal of his filing entitled “Informal

Appellate Brief ‘2255’ Concerning Alleyne/Apprendi Issues” as an unauthorized

second or successive 28 U.S.C. § 2255 motion. As implied by the title, his filing

sought relief from his sentence under § 2255 based on the Supreme Court’s recent

decision in Alleyne v. United States, 133 S. Ct. 2151 (2013). We deny a COA and

dismiss this matter.



*
       This order is not binding precedent except under the doctrines of law of the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.
      Mr. Powell 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 could debate whether the district court correctly

held that the filing was an unauthorized second or successive § 2255 motion.

      Mr. Powell recognizes that this is his second § 2255 motion, but he asserts that

it is not subject to the restrictions of 28 U.S.C. § 2255(h) because it is based on a

change in the governing law, namely Alleyne. He contends that because he relies on

a new right, he can proceed under § 2255(f)(3), which sets a one-year filing deadline

starting on “the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review.” But § 2255(f)(3) does

not allow him to evade § 2255(h)(2)’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)).

      Allowing Mr. Powell to proceed solely under § 2255(f)(3) without regard to

§ 2255(h), as he urges, would nullify § 2255(h)(2). Mr. Powell’s arguments

regarding the earlier non-availability of Alleyne, grounded in abuse-of-the-writ


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doctrine, fail for the same reason: there would be no point to § 2255(h)(2) if a

prisoner could proceed under any new decision simply because it had not been issued

at the time of a first § 2255 motion. See Prost, 636 F.3d at 586 (“If the rule were

otherwise . . . the statute’s limitations would be effectively pointless[.]”); id. at 589

(“The simple fact is that Congress decided that, unless subsection (h)’s requirements

are met, finality concerns trump and the litigation must stop after a first collateral

attack.”). We also reject Mr. Powell’s assertion that applying § 2255(h)(2) to him

would implicate the Suspension Clause. See Felker v. Turpin, 518 U.S. 651, 654,

663-64 (1996) (holding that restrictions on second or successive 28 U.S.C. § 2254

applications do not violate Suspension Clause); Gilbert v. United States, 640 F.3d

1293, 1317 (11th Cir. 2011) (en banc) (applying Felker to § 2255(h)).

       Because Mr. Powell’s new filing again sought to challenge his sentence under

§ 2255 and this court did not authorize the filing, the district court lacked jurisdiction

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

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

it for lack of jurisdiction. See id. at 1252. Further, given that Alleyne does not

satisfy § 2255(h)(2), see In re Payne, 733 F.3d 1027, 1029-30 (10th Cir. 2013)

(per curiam),1 no reasonable jurist could debate the district court’s decision not to




1
       Mr. Powell argues that Alleyne should apply retroactively, and that the lower
federal courts can determine under § 2255(f)(3) whether it so applies. We do not
consider these arguments because Mr. Powell is bound by § 2255(h)(2), which by its
                                                                           (continued)
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transfer the motion to this court for authorization, see Cline, 531 F.3d at 1252.

Mr. Powell complains that the district court did not address his extensive retroactivity

analysis, but the district court’s lack of jurisdiction means that it could not consider

his merits arguments. See United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir.

2006) (“[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.”).

      We deny Mr. Powell’s “Motion to Amend Petitioner’s 28 U.S.C. §2255” as

moot. We grant his motion to proceed without prepayment of costs and fees, but we

deny a COA and dismiss this matter.


                                                 Entered for the Court



                                                 ELISABETH A. SHUMAKER, Clerk




plain language requires that the Supreme Court, not the lower federal courts, make
Alleyne retroactive to cases on collateral review.


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