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

                           FOR THE TENTH CIRCUIT                       February 12, 2013

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

             Plaintiff−Appellee,

v.                                                         No. 12-3305
                                                (D.C. Nos. 2:09-CR-20006-JWL-1,
JOSE MEDINA, JR.,                                    2:12-CV-02195-JWL &
                                                      2:11-CV-02422-JWL)
             Defendant−Appellant.                           (D. Kan.)


        ORDER DENYING CERTIFICATE OF APPEALABILITY AND
         DENYING AUTHORIZATION UNDER 28 U.S.C. § 2255(H)*


Before BRISCOE, Chief Judge, KELLY and MATHESON, Circuit Judges.


      Jose Medina, Jr. seeks to appeal the district court’s dismissal of his second

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

subsequent Fed. R. Civ. P. 60(b) motion. In the alternative, he seeks this court’s

authorization to proceed with successive § 2255 claims. See 28 U.S.C. § 2255(h).

We deny a certificate of appealability (COA) and deny authorization.

      In 2009 Mr. Medina pleaded guilty to participating in a conspiracy to

distribute and possess with the intent to distribute cocaine, and in 2010 he was


*
       This order is not binding precedent except under the doctrines of law of the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.
sentenced to 97 months of imprisonment. He filed a § 2255 motion in 2011, which

the district court dismissed as untimely. Instead of appealing, Mr. Medina filed a

second § 2255 motion in 2012. The district court dismissed that motion as an

unauthorized second or successive § 2255 motion. Mr. Medina moved to reconsider

the dismissal under Fed. R. Civ. P. 59(e) or in the alternative to reopen his first

§ 2255 case under Rule 60(b). The district court denied the motion to reconsider and

dismissed the Rule 60(b) motion as an unauthorized successive § 2255 motion.

Mr. Medina filed a timely notice of appeal.

      Mr. Medina’s combined opening brief and application for COA mentions the

dismissal of the first § 2255 motion, the dismissal of the second § 2255 motion, and

the dismissal of the Rule 60(b) motion. But the notice of appeal is timely only as to

the dismissal of the second § 2255 motion (because the Rule 59(e)/Rule 60(b) motion

tolled the time for appeal, see Fed. R. App. P. 4(a)(4)(A)(iv), (vi)) and the dismissal

of the Rule 60(b) motion. Therefore, we cannot consider any challenges to the

dismissal of the first § 2255 motion.

      To appeal the dismissals of the second § 2255 motion and the Rule 60(b)

motion, Mr. Medina must secure a COA. To do so, 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).


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      Mr. Medina argues that the district court erred in construing the Rule 60(b)

motion as a successive § 2255 motion because the Rule 60(b) motion did not attack

his conviction, but simply sought to show how the prosecution’s denial of access to

the evidence kept him from timely filing his first § 2255 motion. Contrary to his

assertions on appeal, however, the Rule 60(b) motion attacks the validity of his

conviction. See R. Vol. 1 at 149 (alleging, under the heading “RULE 60(b)

MOTION,” that “the government fabricated an alleged conspiracy charge without

any evidence”; “there was no proof that statute[ ]had been violated by petitioner”;

“the government committed fraud upon the court”; and “this fabricated evidence

made the conviction null and void for lack of subject matter jurisdiction”); id. at 150

(indicating that Mr. Medina wanted to add new claims after perusing the evidence).

Reasonable jurists could not debate the correctness of the district court’s decision

that the Rule 60(b) motion was subject to authorization under § 2255(h). See

Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005) (holding that a Rule 60(b)

motion that presents “grounds entitling a petitioner to habeas corpus relief” or “seeks

to add a new ground for relief” requires authorization).

      Mr. Medina also contends that the district court should not have dismissed the

second § 2255 motion or the Rule 60(b) motion, but instead should have transferred

them to this court for authorization. But although the district court may transfer a

second or successive § 2255 motion to this court, it is not required to do so. In re

Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). Given that the district


                                          -3-
court concluded that transferring the filings would not serve the interest of justice

under 28 U.S.C. § 1631, no reasonable jurist could conclude that the court was

required to transfer rather than to dismiss.

      Mr. Medina alternatively requests authorization to file a successive § 2255

motion. He contends that he is actually innocent of conspiracy and that his guilty

plea was based on fraudulent evidence that was concealed by the government and

defense counsel. He alleges that counsel was ineffective in the plea process,

particularly by failing to move for suppression of evidence under the Fourth

Amendment, agreeing to a “dissemination restriction” that allowed Mr. Medina to

plead guilty and be sentenced without being shown any of the evidence or the

presentence report, and vouching for and failing to investigate the evidence.

      Mr. Medina first relies on § 2255(h)(1), which requires a prima facie showing

of “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 [him] guilty of the offense.” For his new

evidence, he points to the evidence allegedly withheld from him due to the

“dissemination restriction” and certain affidavits/statements by alleged

co-conspirators, in which one denies receiving from or selling cocaine for

Mr. Medina and another denies participating in a cocaine conspiracy with him. But

this evidence falls short of making a prima facie case that a reasonable factfinder

would not find Mr. Medina guilty, and thus fails to satisfy § 2255(h)(1). As the


                                          -4-
district court noted, Mr. Medina and the alleged co-conspirators could all be involved

in the same conspiracy without dealing with or even knowing each other. See United

States v. Foy, 641 F.3d 455, 465 (10th Cir.) (“The interdependence element [of

conspiracy] does not require that the government prove the coconspirators know the

identities or details of each scheme or have connections with all the other members of

the conspiracy.” (internal quotation marks omitted)), cert. denied, 132 S. Ct. 467

(2011).

      Mr. Medina also seems to invoke § 2255(h)(2), which requires “a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable,” by citing Missouri v. Frye, 132 S. Ct. 1399

(2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012). Frye and Lafler do not satisfy

§ 2255(h)(2), however, because they do not articulate “a new rule of constitutional

law.” See Williams v. United States, __ F.3d __, No. 12-2659, 2013 WL 238877, at

*1 (8th Cir. Jan. 23, 2013) (per curiam) (collecting cases).

      Mr. Medina’s motion for leave to proceed on appeal without prepayment of

costs or fees is granted. His request for a COA and his alternative request for

authorization to file a successive § 2255 motion are denied. The addendum filed

provisionally under seal on February 4, 2013, shall remain filed under seal.



                                                Entered for the Court


                                                ELISABETH A. SHUMAKER, Clerk
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