                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 8 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 96-1552
 v.                                                (D.C. No. 96-M-983)
                                                        (D. Colo.)
 JOSE ARIAS-SANTOS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      On December 3, 1996, Appellant Jose Arias-Santos filed a motion to


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 with the

United States District Court for the District of Colorado. The district court

determined that Mr. Santos' motion lacked merit and dismissed the motion on

December 4, 1996.



      Mr. Santos' December 3, 1996 § 2255 motion is his second motion for relief

under § 2255. On April 24, 1996, Mr. Santos filed a prior § 2255 motion in the

United States District Court for the District of Colorado. This motion was also

denied by the district court, and Mr. Santos' appeal of the denial is currently

pending with the Tenth Circuit Court of Appeals.



      Under the recently enacted Antiterrorism and Effective Death Penalty Act

of 1996, a second or successive motion for relief under § 2255 is not permitted to

be filed in the district court until "the applicant [moves] in the appropriate court

of appeals for an order authorizing the district court to consider the application."

28 U.S.C. §§ 2244(b)(3)(A) and 2255. The court of appeals may authorize the

filing of a second motion only if a three judge panel certifies that the motion

contains:

      (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

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      (2) a new rule of constitutional law, made retroactive to cases on
      collateral review by the Supreme Court, that was previously
      unavailable.

28 U.S.C. § 2255; see also 28 U.S.C. § 2244(b)(3).



      In the present case, Mr. Santos did not move the Tenth Circuit for

permission to file his second § 2255 motion in the district court. Instead, he

proceeded to file his second motion with the United States District Court for the

District of Colorado. Consequently, the district court lacked jurisdiction to

entertain the motion. The district court should have transferred the motion to the

Tenth Circuit for certification review pursuant to 28 U.S.C. § 1631. See Coleman

v. United States, 106 F.3d 339, 341 (10th Cir. 1997). However, the court elected

to review and deny the motion on its merits. Because the district court lacked

jurisdiction to consider the motion, we must vacate its order denying Mr. Santos'

motion for relief under § 2255.



      Although we could remand this action to the district court for the district

court to enter an order transferring the action back to this court for certification,

we find that such action would be a waste of judicial resources. Hence, we will

proceed to determine whether Mr. Santos should be permitted to file a second

§ 2255 motion in the district court. In essence, we will construe Mr. Santos'


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notice of appeal and appellate brief as an implied application for leave to file a

successive § 2255 motion in the United States District Court for the District of

Colorado. See Pease v. Klinger, 115 F.3d 763 (10th Cir. 1997) (treating

appellant's notice of appeal and appellate brief as implied application to file a

successive petition pursuant to 28 U.S.C. § 2254); Nunez v. United States, 96 F.3d

990, 991-92 (7th Cir. 1996) (treating notice of appeal of successive § 2255

motion as a request for authorization).



      In his appellate brief, Mr. Santos argues he is entitled to relief under §

2255 for the following reasons: (1) his indictment and conviction were obtained

without federal jurisdiction, in violation of the Fifth, Sixth, Ninth, Tenth and

Fourteenth Amendments; (2) he was subjected to prosecutorial misconduct, in

violation of the Fifth, Sixth, and Fourteenth Amendment; and (3) he was

subjected to an unconstitutional search and seizure, in violation of the Fourth

Amendment. Unfortunately for Mr. Santos, neither his brief nor his notice of

appeal alleges or sets forth any newly discovered evidence that would establish by

clear and convincing evidence that he was not guilty of the offenses for which he

was convicted. See 28 U.S.C. § 2255. Furthermore, Mr. Santos fails to support

any of his claims with a "new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously unavailable." See


                                          -4-
id. Consequently, we are precluded from allowing Mr. Santos to file his second §

2255 motion in district court.



      We hereby vacate the district court's December 4, 1996 order denying Mr.

Santos' § 2255 motion. We also dismiss Mr. Santos' December 3, 1996 § 2255

motion and his appeal of the district court's denial of that motion. Permission to

file a successive § 2255 motion is likewise denied.



                                       Entered for the Court


                                       WADE BRORBY
                                       United States Circuit Judge




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