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

                             FOR THE TENTH CIRCUIT                             August 3, 2017
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                 No. 17-7020
                                         (D.C. Nos. 6:17-CV-00032-RAW,
BOBBY JOE BROWN, JR.,                       6:13-CR-00005-RAW-1 &
                                              6:15-CV-00483-RAW)
    Defendant - Appellant.                         (E.D. Okla.)
                    _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
                 _________________________________

       Bobby Joe Brown, Jr., a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s dismissal of his second 28 U.S.C.

§ 2255 motion for lack of jurisdiction. We deny a COA and dismiss the matter.

       In March 2013, Mr. Brown pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced under the

Armed Career Criminal Act (ACCA). In December 2015, Mr. Brown filed a § 2255

motion seeking relief under Johnson v. United States, 135 S. Ct. 2551 (2015). In

Johnson, the Supreme Court invalidated the residual clause in the ACCA’s definition of

“violent felony” as unconstitutionally vague, see id. at 2557, 2563.

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       On January 12, 2017, the district court denied the § 2255 motion after determining

that the residual clause had no effect upon Mr. Brown’s sentence. As the court explained,

the ACCA enhancement was based on Mr. Brown’s convictions for two serious drug

offenses and a conviction for assault and battery with a dangerous weapon, which is

considered a violent felony under the elements clause, not the residual clause.

       Mr. Brown did not seek to appeal from the district court’s decision. Instead, two

weeks later, on January 26, Mr. Brown filed a second § 2255 motion in which he again

argued that he was entitled to relief from his sentence under Johnson and related cases.

The district court dismissed the motion for lack of jurisdiction, noting that Mr. Brown

had filed his second § 2255 motion without seeking the proper circuit-court authorization.

       Mr. Brown now seeks a COA to appeal the dismissal of his second § 2255 motion.

To obtain a COA, Mr. Brown must show 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).

       A prisoner may not file a second or successive § 2255 motion unless he first

obtains an order from the circuit court authorizing the district court to consider the

motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). In the absence of such authorization,

a district court lacks jurisdiction to address the merits of a second or successive § 2255

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

       Mr. Brown filed a second § 2255 motion without the proper authorization. And he

offers no argument in his Motion for COA, his supplement to that motion, or his

addendum to that motion that explains how the district court erred in its procedural

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ruling. Reasonable jurists could not debate that the district court was correct to treat

Mr. Brown’s new § 2255 motion as an unauthorized second or successive § 2255 motion

and dismiss it for lack of jurisdiction.

       Accordingly, we deny a COA and dismiss this matter. Mr. Brown’s motion for

leave to proceed on appeal without prepayment of costs or fees is denied as moot. The

relevant statute, 28 U.S.C. §1915(a)(1), does not permit litigants to avoid payment of

filing and docketing fees, only prepayment of those fees. Mr. Brown therefore remains

obligated to pay all filing and docketing fees.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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