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

                             FOR THE TENTH CIRCUIT                             June 5, 2018
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-2078
                                               (D.C. Nos. 1:16-CV-00548-MV-CG and
ERIC LAMONT JOHNSON,                                  1:03-CR-00477-MV-1)
                                                              (D. N.M.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Eric Johnson seeks a certificate of appealability (COA) to appeal the district

court’s orders denying his 28 U.S.C. § 2255 motion and his Federal Rule of Civil

Procedure 59(e) motions. His appointed counsel also moves for leave to withdraw.1

We deny Johnson’s request for a COA to appeal the order denying his § 2255 motion,

vacate the district court’s order denying his Rule 59(e) motions, deny Johnson’s


      *
         This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
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         After the district court denied his § 2255 motion, Johnson filed a notice of
appeal through appointed counsel. But appointed counsel then moved for leave to
withdraw, asserting that Johnson lacked any non-frivolous basis to appeal the district
court’s order. Because appointed counsel therefore played no role in preparing
Johnson’s request for a COA, we will liberally construe that request and Johnson’s
other pro se filings. But we won’t act as his advocate. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
implied request for authorization to file a successive § 2255 motion, grant counsel’s

motion to withdraw, and dismiss this matter.

                                      Background

      Johnson pleaded guilty in federal district court to possessing a firearm during

and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

The district court found that Johnson was a career offender and increased his

sentence pursuant to U.S.S.G. § 4B1.2(a)(2). Johnson filed a timely § 2255 motion,

but the district court denied the motion, and we declined to grant Johnson a COA. See

United States v. Johnson, 529 F. App’x 876 (10th Cir. 2013) (unpublished).

      Three years later, Johnson sought permission to file a second or successive

§ 2255 motion. He argued that his sentence was unconstitutional in light of Johnson

v. United States, 135 S. Ct. 2551 (2015), and United States v. Madrid, 805 F.3d 1204

(10th Cir. 2015), abrogated by Beckles v. United States, 137 S. Ct. 886 (2017).

Johnson held that the residual clause of the Armed Career Criminal Act (ACCA) was

unconstitutionally vague, 135 S. Ct. at 2563, and Madrid held that the residual clause

in § 4B1.2(a)(2) of the Guidelines was also unconstitutionally vague, 805 F.3d at

1211. We granted Johnson’s request, and a magistrate judge recommended granting

Johnson’s § 2255 motion.

      After the magistrate judge issued her recommendation, the Supreme Court held

in Beckles that “the advisory Guidelines are not subject to vagueness challenges.”

137 S. Ct. at 890. In light of Beckles, the district court declined to adopt the

magistrate judge’s recommendation, denied Johnson’s § 2255 motion, and declined

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to grant Johnson a COA. Johnson filed a timely notice of appeal through counsel.

Afterwards, Johnson submitted two pro se post-judgment motions, which we

interpreted as timely Rule 59(e) motions. See Fed. R. Civ. P. 59(e) (“A motion to

alter or amend a judgment must be filed no later than 28 days after the entry of the

judgment.”). As a result, we abated this appeal pending the district court’s disposition

of these motions. See Fed. R. App. P. 4(a)(4) (stating that notice of appeal “becomes

effective” after post-judgment motions are disposed of).

      The magistrate judge recommended denying both Rule 59(e) motions. The

district court adopted the magistrate judge’s recommendation, and Johnson filed a

timely pro se notice of appeal.

                                       Analysis

I.    Johnson’s § 2255 motion

      To appeal the district court’s order denying his § 2255 motion, Johnson must

first obtain a COA. See 28 U.S.C. § 2253(c)(1)(B); United States v. Harper, 545 F.3d

1230, 1233 (10th Cir. 2008). Doing so requires Johnson to “demonstrate that

reasonable jurists would find the district court’s assessment” of his motion

“debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Johnson fails to make this showing. No reasonable jurist could disagree with

the district court’s decision to deny Johnson’s § 2255 motion. See id. In that motion,

Johnson argued that § 4B1.2(a)(2) of the Guidelines is unconstitutionally vague, and

therefore his sentencing enhancement was improper. But Beckles explicitly held that



                                           3
the advisory Guidelines aren’t subject to vagueness challenges. See 137 S. Ct. at 890.

Thus, we decline to grant Johnson a COA on this basis.

II.    Johnson’s Rule 59(e) Motions

       In Johnson’s Rule 59(e) motions, he urged the district court to reconsider its

decision to deny his § 2255 motion because, according to Johnson, his California

conviction for voluntary manslaughter is no longer a crime of violence pursuant to

the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016).

       But this argument isn’t within the scope of the second or successive § 2255

motion that we permitted Johnson to file. See § 2255(h); 28 U.S.C. § 2244(a)–(b). As

such, the district court should have interpreted these Rule 59(e) motions, which

raised new substantive challenges to Johnson’s sentence, as successive § 2255

motions. See United States v. Pedraza, 466 F.3d 932, 934 (10th Cir. 2006) (“To the

extent that the Rule 59(e) motion presented substantive argument reasserting a

federal basis for relief from [defendant’s] underlying conviction, the district court

should have transferred the motion to this court as an additional request to file a

second § 2255 motion.”). Because the district court lacked jurisdiction to rule on

Johnson’s unauthorized successive § 2255 motions, we vacate the district court’s

ruling with respect to Johnson’s Rule 59(e) motions. See id. at 933–34 (finding that

Rule 59(e) motion constituted unauthorized second or successive § 2255 motion and

vacating district court’s order for lack of jurisdiction).

       Nevertheless, although the district court lacked jurisdiction to rule on

Johnson’s Rule 59(e) motions, we elect to construe Johnson’s notice of appeal

                                             4
designating the order denying those motions “as an implied application to this court

for leave to file a [successive] § 2255 motion.” United States v. Nelson, 465 F.3d

1145, 1149 (10th Cir. 2006); cf. Spitznas v. Boone, 464 F.3d 1213, 1219 (10th Cir.

2006) (stating that if “the district court has incorrectly treated a second or successive

petition as a true Rule 60(b) motion and denied it on the merits, we will vacate the

district court’s order for lack of jurisdiction and construe the petitioner’s appeal as an

application to file a second or successive petition”).

      We will authorize a petitioner to file a second or successive § 2255 motion if

the motion contains (1) “newly discovered evidence,” or (2) “a new rule of

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

Court, that was previously unavailable.” § 2255(h). Johnson’s motions don’t present

new evidence. Nor do they cite a new rule of constitutional law that the Supreme

Court has made retroactively applicable to cases on collateral review. Instead,

Johnson’s Rule 59(e) motions cite Mathis, which did not create a new rule of

constitutional law. See Mathis, 136 S. Ct. at 2257 (“Our precedents make this a

straightforward case. For more than 25 years, we have repeatedly made clear that

application of ACCA involves, and involves only, comparing elements.” (emphasis

added)); United States v. Taylor, 672 F. App’x 860, 864 (10th Cir. 2016)

(unpublished) (stating Mathis didn’t announce new rule). Thus, we deny Johnson’s

implicit request to file a successive § 2255 motion.




                                            5
                                    Conclusion

      We deny Johnson’s request for a COA, vacate the district court’s order

denying Johnson’s Rule 59(e) motions, deny Johnson’s implied request to file a

successive § 2255 motion, and dismiss this matter. Finally, we grant appointed

counsel’s motion to withdraw.


                                          Entered for the Court


                                          Nancy L. Moritz
                                          Circuit Judge




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