                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES COURT OF APPEALS May 18, 2015
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 14-3263
          v.                                  (D.C. No. 5:94-CR-40017-SAC-1)
 JESSIE AILSWORTH, JR.,                                  (D. of Kan.)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges. **


      Jessie Ailsworth, Jr. appeals the district court’s dismissal of two motions to

vacate or modify his sentence. 1 We find one of his motions is an unauthorized

successive habeas petition. We thus must vacate the district court’s denial of the

motion, and we deny any implied application for authorization to file a successive


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
         Because Ailsworth proceeds pro se on appeal, we construe his pleadings
liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
habeas petition. As to the other motion, we dismiss the appeal as untimely under

Federal Rule of Appellate Procedure 4(b)(1)(A).

                                 I. Background

      This appeal is the latest in a years-long effort by Ailsworth to reduce the

360-month sentence he is currently serving for drug trafficking and other

offenses. Ailsworth’s post-conviction litigation has been recounted in detail both

by this court and the district court on numerous occasions. See, e.g., United

States v. Ailsworth, 513 F. App’x 720, 721 (10th Cir. 2013); United States v.

Ailsworth, 325 F. App’x 658, 659 (10th Cir. 2009); United States v. Ailsworth,

No. 94-40017-01-SAC, 2014 WL 5302975, at *1 (D. Kan. Oct. 15, 2014). As is

relevant to this appeal, Ailsworth filed his first 28 U.S.C. § 2255 habeas petition

in 2000. The petition resulted in the entry of an amended judgment in 2002

reducing his term of supervised release from ten years to five. In 2012, he filed a

petition for a writ of audita querela, which the district court construed as an

unauthorized successive § 2255 motion and dismissed for lack of jurisdiction.

See 28 U.S.C. § 2255(h) (requiring certification from a court of appeals to file a

second or successive motion). More recently, in 2013, Ailsworth filed a § 2255

petition arguing for the retroactive application of the Supreme Court’s decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013) to his sentence. The district

court again found the motion was an unauthorized successive petition and

dismissed for lack of jurisdiction.

                                         -2-
                                 II. Discussion

      A.     Motion to Vacate Judgment Pursuant to Rule 36, In Pari Materia to
             Rule 60(b) Fed. R. Civ. Proc.

      In a motion to vacate his sentence, Ailsworth repeats his argument from

other cases that Alleyne applies retroactively to his case. The district court

treated the motion as a Rule 36 motion to correct a clerical error, and held that

Ailsworth’s substantive attack on his sentence fell outside Rule 36’s narrow

scope. 2 The government contends the district court was without jurisdiction to

consider the motion because the relief sought requires that the motion be treated

as an unauthorized successive § 2255 petition. We agree.

       As an initial matter, the district court construed Ailsworth’s pro se motion

as a Rule 36, rather than a Rule 60(b), motion. As the government points out,

Ailsworth did not make any arguments regarding the applicability of Rule 36

beyond his citation to the rule in the title of the motion. He did, however, discuss

Rule 60(b)’s application. See R., Vol. I at 60–61. This is consistent with

Ailsworth’s brief on appeal which does not address the district court’s Rule 36

holding and instead continues to argue under Rule 60(b).




      2
         Rule 36 provides that “[a]fter giving any notice it considers appropriate,
the court may at any time correct a clerical error in a judgment, order, or other
part of the record, or correct an error in the record arising from oversight or
omission.” Fed. R. Crim. P. 36.

                                         -3-
      Despite whether Ailsworth’s intention was to file a Rule 60(b) motion, we

still must determine whether the motion was a true Rule 60(b) motion or a veiled

habeas petition. 3 “It is the relief sought,” rather than the title of the motion, that

ultimately determines whether a pleading is a § 2255 motion. United States v.

Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006). “A § 2255 motion is one claiming

the right to be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise subject to collateral attack.” Id.

at 1148 (internal quotation marks omitted).

      Here, Ailsworth’s motion seeks relief from his sentence on the ground that

it was entered in violation of the Sixth Amendment. The district court even stated

that Ailsworth was “plainly . . . making a substantive attack on his sentence,” and

that “[t]o pursue a substantive change to his sentence, [he] would have to file a

§ 2255 motion as he did last year.” 4 R., Vol. I at 99. Thus, we find it plain that

      3
        Our conclusion that Ailsworth’s motion was intended to be a Rule 60(b)
motion and not a Rule 36 motion does not change our ultimate conclusion that the
motion, by whatever name, was a § 2255 petition. Our analysis “does not depend
on which rule the prisoner invokes.” United States v. Nelson, 465 F.3d 1145,
1149 (10th Cir. 2006) (quoting United States v. Scott, 414 F.3d 815, 816 (7th Cir.
2005)).
      4
         We see no way to construe the district court’s language to find that it
treated the motion to vacate as a § 2255 petition. The court did say that the relief
sought in the motion would be appropriate only through a § 2255 motion and that
                                                                      (continued...)

                                           -4-
the relief sought in his Rule 60(b) motion requires us to treat it as a § 2255

motion. Because he has already filed a § 2255 motion, it was successive and the

district court was without jurisdiction to deny the motion. 5 See In re Cline, 531

      4
        (...continued)
if Ailsworth attempted to do so “[t]he court would make the same ruling today” as
it did in response to his 2013 § 2255 motion—that is, decline to transfer the
motion to this court and dismiss the motion for lack of jurisdiction. But the court
went on to state “the Rule 36 motion is denied”—a holding that required a
purported exercise of jurisdiction. This reading of the district court’s opinion is
confirmed by its subsequent response to Ailsworth’s petition for a certificate of
appealability. The court issued an order explaining that “[i]n its order filed in
October, the court did not address the issuance of a certificate of appealability . . .
because the defendant’s motions did not constitute a proceeding seeking habeas
corpus relief or relief under § 2255.”
      5
         We previously expressed doubt as to whether the district court was
correct in finding Ailsworth’s 2012 motion for a writ of audita querela was a
second or successive petition. See Ailsworth, 513 F. App’x at 722 (order denying
COA). We thought it at least debatable that, under the Supreme Court’s holding
in Magwood v. Patterson, 561 U.S. 320 (2010), the motion was not successive. In
Magwood, the Court held that “where there is a new judgment intervening
between two habeas petitions, an application challenging the resulting new
judgment is not second or successive at all.” Id. at 341–42 (internal quotations
and citation omitted). Ailsworth filed the motion for the writ after the district
court entered the amended judgment reducing the term of supervised release and
thus it may have been properly considered Ailsworth’s first collateral attack on
the amended judgment. Ailsworth has never sought to reopen the district court’s
procedural ruling on his motion for a writ of audita querela. And he subsequently
filed a motion captioned “Jessie Ailsworth, Jr.’s Pro Se Motion to Vacate
Sentence Pursuant to 28 [sic] USC § 2255[f][3].” Supp. R., Vol. I at 41. In
ruling on that motion, the district court held that “[t]here is no question [that]
Ailsworth’s latest motion is a successive motion. At the every least, it is
successive to his motion for writ of audita querela that was denied as a § 2255
motion.” United States v. Ailsworth, Nos. 13-3081-SAC, 94-40017-01-SAC, 2013
WL 4011072, at *1 (D. Kan. Aug. 6, 2013). The same is true here. Even if his
present motion is considered an attack on the amended judgment and not
successive to his first habeas petition, it is certainly not his first or even second
                                                                           (continued...)

                                           -5-
F.3d 1249, 1251 (10th Cir. 2008). We therefore vacate that portion of the district

court’s order denying the motion. See Nelson, 465 F.3d at 1148 (“[I]f the

prisoner’s pleading must be treated as a second or successive § 2255 motion, the

district court does not even have jurisdiction to deny the relief sought in the

pleading.”).

      So as not to prolong things, we treat Ailsworth’s notice of appeal 6 and his

opening brief as an implied application for leave to file a successive § 2255

motion. A successive motion is permitted only if it contains “newly discovered

evidence” or “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(h). Ailsworth does not identify any newly discovered evidence

and his argument that Alleyne applies retroactively is clearly foreclosed by our

precedent. See In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013) (holding

Alleyne does not apply retroactively on collateral review). Thus, we deny the

implied application for authorization.




      5
       (...continued)
attempt at doing so.
      6
       Ailsworth filed a petition for a certificate of appealability with this court
which we took as a misdirected notice of appeal. R., Vol. I at 114.

                                          -6-
       B.     Motion for a Modification of an Imposed Term of Imprisonment
              Pursuant to 18 U.S.C. § 3582(c)(2)

       Ailsworth appeals the district court’s denial of his motion to reduce his

sentence under 18 U.S.C. § 3582(c)(2). In its response brief, the government

argues the appeal should be dismissed for failure to comply with Federal Rule of

Appellate Procedure 4(b)(1)(A)’s requirement that criminal appeals be filed

within fourteen days from entry of judgment. Although compliance with Rule

4(b)(1)(A) is not jurisdictional, we have held that its requirements “remain

inflexible and ‘thus assure relief to a party properly raising them.’” United States

v. Garduno, 506 F.3d 1287, 1291 (10th Cir. 2007) (quoting Eberhart v. United

States, 546 U.S. 12, 19 (2005)). Ailsworth’s notice of appeal was filed beyond

the fourteen-day deadline. Because the government properly raised the timeliness

issue in its response brief, it is entitled to a dismissal.

                                   III. Conclusion

       For the foregoing reasons, we VACATE that portion of the district court’s

opinion denying the “Motion to Vacate Judgment Pursuant to Rule 36, In Pari

Materia to Rule 60(b) Fed. R. Civ. Proc.” and DENY the implied application for

authorization to file a successive § 2255 motion. We DISMISS Ailsworth’s

appeal of his § 3582(c)(2) motion as untimely under Federal Rule of Appellate




                                            -7-
Procedure 4(b)(1)(A). Finally, we DENY Ailsworth’s motion to proceed in forma

pauperis on appeal.

                                           ENTERED FOR THE COURT

                                           Timothy M. Tymkovich
                                           Circuit Judge




                                     -8-
