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

                            FOR THE TENTH CIRCUIT                         May 7, 2014

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

              Plaintiff-Appellee,

v.                                                         No. 14-1076
                                                (D.C. Nos. 1:13-CV-03331-PAB &
JOHN WESLEY RADCLIFF,                                1:99-CR-00061-PAB-2)
                                                            (D. Colo.)
              Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HOLMES, EBEL, and PHILLIPS, Circuit Judges.


       John Wesley Radcliff, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the district court’s denial of his motion filed

pursuant to 28 U.S.C. § 2255. We deny a COA, but we also vacate the district

court’s judgment and remand with instructions to dismiss Radcliff’s motion for lack

of jurisdiction.

       Radcliff was convicted in 2001 of federal drug and firearm offenses. He

appealed, and this court affirmed his convictions and sentence. United States v.

Radcliff, 331 F.3d 1153, 1164 (10th Cir. 2003). In the § 2255 motion he filed in

*
       This order is not binding precedent except under the doctrines of law of the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.
December 2013, Radcliff challenged his sentence imposed for his 2001 convictions,

citing the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151

(2013). He argued that his motion was timely under § 2255(f)(3) because he claimed

that Alleyne recognized a new right that has been “made retroactively applicable to

cases on collateral review.”

      The district court first construed Radcliff’s motion as an unauthorized second

or successive § 2255 motion, noting that he had previously filed a § 2255 motion in

2004. The court stated that, without this court’s authorization, it had no jurisdiction

to consider the merits of the claims Radcliff asserted in his second or successive

§ 2255 motion. The court next determined that transfer of the motion to this court

was not in the interests of justice and that the motion should be “denied” for lack of

jurisdiction. R. at 64. The court then proceeded to hold that, if the court did have

jurisdiction, Radcliff’s motion would be denied as untimely. The court ultimately

stated that the motion was “denied” “[f]or the reasons stated.” Id. at 61. The

judgment denied the motion and dismissed the action.

      Radcliff must obtain a COA to pursue an appeal. See United States v. Harper,

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

procedural grounds, he must show both “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).


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      Radcliff first argues that the district court erred in holding that his motion was

untimely because it misconstrued § 2255(f)(3). But a district court does not have

jurisdiction to address the merits of an unauthorized second or successive § 2255

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

therefore disputes that his December 2013 § 2255 motion was second or successive.

He claims that he never filed a first § 2255 motion.

      The district court’s docket, however, reflects that Radcliff did file such a

motion on October 27, 2004. See R. at 50. He nonetheless maintains that his 2004

motion was not filed pursuant to § 2255. We have reviewed Radcliff’s 2004 filing

and conclude that it was a § 2255 motion. His motion and the district court’s order

denying it are attached to this order as Exhibits A and B. Radcliff filed the motion

on a form citing § 2255, and he stated he was challenging his 2001 convictions.

See Ex. A at 1. He then cited Blakely v. Washington, 542 U.S. 296 (2004), for the

proposition that he was entitled to a jury determination of the facts supporting a

sentence enhancement based upon obstruction of justice. See id. at 4-5.

      The district court denied Radcliff’s 2004 § 2255 motion as untimely.

See Ex. B at 2-3. A § 2255 motion that was dismissed as time-barred qualifies as a

first § 2255 motion, making any later motions challenging the same conviction

second or successive. See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011)

(per curiam).




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      Thus, reasonable jurists would not debate the district court’s procedural ruling

that it lacked jurisdiction to consider Radcliff’s latest § 2255 motion because it had

not been authorized by this court. For that reason we deny a COA. But because the

district court proceeded to deny, rather than dismiss, Radcliff’s motion, we vacate the

district court’s judgment and remand with instructions to dismiss Radcliff’s

unauthorized second or successive motion for lack of jurisdiction. See Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (“When the lower federal

court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely

for the purpose of correcting the error of the lower court in entertaining the suit.”

(brackets and internal quotation mark omitted)). We grant Radcliff’s application to

proceed on appeal without prepayment of costs and fees.


                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




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