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

                               FOR THE TENTH CIRCUIT                         September 18, 2018
                           _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 18-6114
                                                     (D.C. Nos. 5:18-CV-00171-F &
MICHAEL DWIGHT NORWOOD,                                   5:06-CR-00180-F-1)
                                                             (W.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before BRISCOE, MATHESON, and MORITZ, Circuit Judges.
                  _________________________________

       Michael Dwight Norwood, a federal prisoner appearing pro se, seeks a certificate

of appealability (COA) to appeal the district court’s order denying his motion for relief

under Fed. R. Crim. P. 36, which the district court construed as an unauthorized second

or successive motion attacking his sentence under 28 U.S.C. § 2255. Exercising

jurisdiction under 28 U.S.C. §§ 1291 and 2553(a), we deny the application for a COA

and dismiss this matter.

       Norwood entered a guilty plea to three counts of distribution of methamphetamine

and one count of felon in possession of a firearm. He was sentenced to 360 months’

imprisonment on counts 1 and 2, life imprisonment on count 3, and 120 months’

       
         This order is not binding precedent except under the doctrines of law of the case,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.
imprisonment on count 4, with all terms to run concurrently. Norwood appealed, and this

court affirmed his sentence.

       Thereafter, Norwood began a steady campaign to obtain relief from his sentence

by filing motions to reduce his sentence under 18 U.S.C. § 3582(c)(2), or to vacate his

sentence under § 2255. These attempts were unsuccessful. Most recently, Norwood filed

a motion to “correct” his conviction under Fed. R. Crim. P. 36. The district court

determined that Norwood’s argument challenged the validity of his sentence, and

therefore construed his Rule 36 motion as a second or successive § 2255 motion filed

without authorization from this court. Norwood now seeks a COA to appeal from the

dismissal of his Rule 36 motion.

       To obtain a COA, Norwood must show at a minimum 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). He has not made this showing. 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. 28 U.S.C. § 2244(b)(3)(A); id.

§ 2255(h). Absent such authorization, a district court lacks jurisdiction to address the

merits of a second or successive § 2255 motion. In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam).

       Although Norwood styled his pleading as a motion to correct his judgment of

conviction, “[i]t is the relief sought, not [the] pleading’s title, that determines whether the

pleading is a § 2255 motion.” United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir.

2006). In his Rule 36 motion, Norwood argued that the length of his sentence was in

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error because his drug offenses should have been classified as Class C felonies instead of

Class A or B felonies, which in turn would have reduced the range of his sentence. This

argument attacks validity of sentence and thus qualifies as a § 2255 motion. See id. at

1148-49.

       In his request for a COA, Norwood fails to adequately address how the district

court erred in construing his Rule 36 motion as second or successive and dismissing it for

lack of jurisdiction. Instead, citing Castro v. United States, 540 U.S. 375 (2003),

Norwood maintains that the court was required to notify him that it intended to

recharacterize the Rule 36 motion as a second or successive § 2255 motion and provide

him an opportunity to withdraw the motion. But the limitation in Castro “applies when a

court recharacterizes a pro se litigant’s motion as a first § 2255 motion.” Id. at 383. “If

the prisoner has filed once, any future motion will be subject to the same constraints

whether it is a second § 2255 motion or a third.” Nelson, 465 F.3d at 1149.

       Reasonable jurists could not debate the district court’s decision to construe

Norwood’s Rule 36 motion as an unauthorized second or successive § 2255 motion and

to dismiss it for lack of jurisdiction. Accordingly, we deny Norwood’s request for a

COA and dismiss this matter. We grant his motion to proceed on appeal without

prepayment of costs or fees.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk


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