                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      August 3, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 09-1121
                                                            (D. Colo.)
 SAMMY LEE WOODS,                             (D.Ct. Nos. 1:08-CV-02529-WYD and
                                                    1:01-CR-00214-WYD-19)
          Defendant - Appellant.



                                  ORDER & JUDGMENT *


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



      The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th

Cir. R. 34.1(G). We accept this case for submission on the briefs.

      Sammy Lee Woods, 2 a federal prisoner appearing pro se, seeks to appeal


      *
         This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation --
(unpublished). 10th Cir. R. 32.1(A).
      2
         The spelling of Woods’ first name is unclear. In our previous decisions, we
referred to him as “Sammy.” See United States v. Small, 423 F.3d 1164, 1170 (10th Cir.
2005); United States v. Woods, 263 Fed. Appx. 704, 705 (10th Cir. 2008) (unpublished).
He refers to himself as “Sammie” in the § 2255 motion at issue and in the documents he
has filed with this Court.
from the district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate, set

aside, or correct sentence. 3 The district court concluded it lacked jurisdiction

over the motion because it was an unauthorized second or successive motion. We

agree and deny authorization to file a second or successive motion.

      Woods was convicted of three drug offenses and sentenced to 240 months

imprisonment. His conviction and sentence were affirmed on direct appeal.

Small, 423 F.3d at 1170. He filed a § 2255 motion to vacate, set aside, or correct

sentence with the district court, which was denied. We denied a Certificate of

Appealability (“COA”). See Woods, 263 Fed. Appx. at 707.

      On November 20, 2008, Woods filed another § 2255 motion with the

district court in which he alleged he is actually innocent and received ineffective

assistance of counsel. The district court dismissed the motion concluding it

lacked subject matter jurisdiction because Woods had not obtained authorization

from this Court before filing a second or successive motion. Woods filed a

notice of appeal, which the court construed as a request for a COA and denied.

      The issuance of a COA is jurisdictional prerequisite to an appeal from the

denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We

will issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a


      3
        We liberally construe Woods’ pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).

                                           -2-
showing, an applicant must demonstrate “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id.

      Reasonable jurists would not debate whether the district court’s dismissal

of Woods’ motion was a correct procedural ruling. 28 U.S.C. § 2255(h) provides:

      A second or successive [§ 2255] motion must be certified as provided
      in [28 U.S.C. § 2244] by a panel of the appropriate court of appeals
      to contain—

             (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 collateral review by the Supreme Court, that
                    was previously unavailable.

Woods’ motion is clearly a second or successive motion and he did not obtain the

required certification from this Court. Thus, the district court properly




                                          -3-
recognized it lacked jurisdiction to consider the motion. 4 See United States v.

Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006).

       Although not required to do so, we treat Woods’ notice of appeal, request

for a COA and appellate brief as an implied application for authorization to file a

second or successive § 2255 motion. See id. at 1149. Woods has not made the

necessary showing. He relies on neither newly discovered evidence, see 28

U.S.C. § 2255(h)(1), nor a new rule of constitutional law, see 28 U.S.C.

§ 2255(h)(2). 5

       We AFFIRM the district court’s order and DENY Wood’s implied

application for authorization to file a second or successive § 2255 motion. This

denial of authorization “shall not be the subject of a petition for rehearing or for a

writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).

       Woods has submitted a supplemental brief to this Court. We did not permit

Woods to file such brief and, to the extent we construe the brief as including a




       4
         Had the court determined the interests of justice would be served by transferring
the motion to this Court rather than dismissing it outright, it could have done so. See In
re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
       5
         Instead, he claims he is actually innocent of the crimes for which he was
convicted because: (1) as to the first crime, he was not within the scope of Congressional
intent; (2) as to the second crime, it did not involve him; and (3) as to the third crime, it
was not included in the charging document. He also claims he received ineffective
assistance of counsel.

                                             -4-
motion to file the same, we DENY that motion.

                                    Entered by the Court:


                                    Terrence L. O’Brien
                                    United States Circuit Judge




                                      -5-
