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

                            FOR THE TENTH CIRCUIT                          June 12, 2012

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff−Appellee,

v.                                                          No. 12-3056
                                                  (D.C. No. 6:06-CR-10129-JTM-1)
JAMES E. BAKER,                                               (D. Kan.)

             Defendant−Appellant.


                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY*


Before KELLY, TYMKOVICH, and MATHESON, Circuit Judges.


      James E. Baker seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his pro se “Motion to Reconsider and Vacate Enhancement.”

The district court denied the filing as an unauthorized second or successive § 2255

motion that did not warrant transfer to this court in the interest of justice. See In re

Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008). Because Mr. Baker attempted to

advance an unauthorized second or successive § 2255 motion, we deny a COA and

dismiss this appeal. See 28 U.S.C. § 2253.


*
       This order is not binding precedent except under the doctrines of law of the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.
      A jury convicted Mr. Baker of being a felon in possession of ammunition. See

18 U.S.C. §§ 922(g)(1) and 924(a)(2). Based on three prior convictions for violent

felonies, the presentence investigation report (“PSR”) recommended that Mr. Baker

be sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),

and U.S.S.G. § 4B1.4. Mr. Baker objected, arguing that one of his state burglary

convictions was not a qualifying offense because his civil rights to possess firearms

had been restored. See 18 U.S.C. § 921(a)(20) (exempting convictions for which a

person’s civil rights have been restored). Over Mr. Baker’s objection, the district

court adopted the recommendation and sentenced him to 235 months in prison. In

affirming both the conviction and sentence, we specifically rejected Mr. Baker’s

argument that his civil rights had been restored so as to disqualify the predicate

burglary offense. United States v. Baker, 508 F.3d 1321, 1327-30 (10th Cir. 2007).

      Mr. Baker subsequently moved to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255, but the district court denied relief, and we denied a

COA, United States v. Baker, 371 F. App’x 987, 988 (10th Cir. 2010). Among other

things, we again rejected his claim that his prior offenses were exempted from the

ACCA because his civil rights had been restored. Id. at 988-89. Mr. Baker then

twice sought authorization to file second or successive § 2255 motions, but we

denied both of his requests.

      Undeterred, Mr. Baker filed in the district court a “Motion to Reconsider and

Vacate Enhancement.” In this filing, Mr. Baker insisted that his burglary conviction


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could not sustain his sentence enhancement because his civil rights had been

restored. And to support his position, Mr. Baker relied on Carachuri-Rosendo v.

Holder, 130 S. Ct. 2577 (2010), and United States v. Rodriquez, 128 S. Ct. 1783

(2008), which he claimed represented a new change in the governing law. The

district court, however, construed the filing as an unauthorized second or successive

§ 2255 motion, see 28 U.S.C. § 2255(h), and denied it rather than transfer it to this

court in the interest of justice. Mr. Baker now seeks to appeal that ruling.

      To pursue his appeal, Mr. Baker must obtain a COA. United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling was based

on procedural grounds, Mr. Baker must show “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and 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). In

particular, the question here is whether reasonable jurists could debate whether the

district court was correct in ruling that Mr. Baker’s motion to vacate constitutes an

unauthorized second or successive § 2255 motion. In considering these issues, we

afford Mr. Baker’s pro se materials a liberal construction. See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam).

      We conclude that no reasonable jurist could debate whether Mr. Baker’s

motion is an unauthorized second or successive § 2255 motion. His filing presented

yet another iteration of the same argument that has been repeatedly rejected


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throughout these criminal and post-conviction proceedings. Indeed, Mr. Baker

maintained that his sentence had been improperly enhanced based on a purportedly

exempted felony conviction---an argument that undeniably sought relief that is

properly pursued via § 2255. See United States v. Nelson, 465 F.3d 1145, 1149

(10th Cir. 2006) (“It is the relief sought, not [the] pleading’s title, that determines

whether the pleading is a § 2255 motion.”). And because Mr. Baker had already filed

his first § 2255 motion, the district court correctly ruled that he was subject to the

strict authorization requirements of § 2255(h). Absent such authorization, the district

court correctly recognized that it lacked jurisdiction to consider Mr. Baker’s motion.1

       Accordingly, we DENY a COA and DISMISS this appeal.


                                                 Entered for the Court




                                                 ELISABETH A. SHUMAKER, Clerk




1
       We acknowledge the district court’s imprecision in denying the motion rather
than dismissing it for lack of jurisdiction. 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.”). Nevertheless, the court’s analysis unequivocally demonstrates that the
court correctly recognized Mr. Baker’s pleading was an unauthorized second or
successive § 2255 motion that the court lacked jurisdiction to consider.

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