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

                               FOR THE TENTH CIRCUIT                       April 7, 2016

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

       Plaintiff - Appellee,

v.                                                          No. 15-2221
                                               (D.C. Nos. 1:15-CV-00176-MV-KK &
ERIC L. JOHNSON,                                      1:03-CR-00477-MV-1)
                                                             (D. N.M.)
       Defendant - Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.


      Eric L. Johnson seeks a certificate of appealability (COA) to appeal from a

district court order dismissing for lack of jurisdiction his motion for relief under

28 U.S.C. § 2255. We deny a COA and dismiss this appeal.

      In 2003, Mr. Johnson was charged with being a felon in possession of a

firearm (count 1), possession with intent to distribute less than 50 kilograms of

marijuana (count 2), and possession of a firearm during and in relation to a drug

trafficking crime (count 3). The charges arose out of a traffic stop during which

officers found marijuana concealed in the trunk of the rental vehicle he was driving

*
       This order is not binding precedent except under the doctrines of law of the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.
and discovered a firearm in his clothing. He pled guilty to count 3, in return for

which the government agreed to dismiss the other two counts. He later moved to

withdraw his plea, but the district court denied the motion. This court affirmed his

conviction and sentence on direct appeal. United States v. Johnson, 376 F. App’x

858 (10th Cir. 2010). He later unsuccessfully challenged his conviction and sentence

under § 2255 on ten different grounds. United States v. Johnson, 529 F. App’x 876

(10th Cir. 2013) (denying COA and dismissing appeal from district court order

denying § 2255 motion). After several additional efforts to collaterally attack his

conviction also failed, he filed the § 2255 motion underlying the instant appeal.

      That motion asserted that newly obtained evidence demonstrated that he was

innocent of the drug trafficking offense and hence of the associated firearm

possession offense to which he had pled guilty, and that his guilty plea had not been

knowing and intelligent in light of his ignorance of this newly obtained evidence.

The evidence in question was a recently prepared affidavit from a Ms. Bennett, who

had rented the vehicle Mr. Johnson was driving at the time of the traffic stop. She

stated: a third party had (with her knowledge) hidden marijuana in the trunk of the

vehicle days before she lent it to Mr. Johnson; she had forgotten about the marijuana

when she lent Mr. Johnson the car; when she realized her mistake she did not call

Mr. Johnson to tell him, nor did she speak up after his arrest, because of threats from

the third party; and she recently revealed the truth because health issues prompted her

to clear her conscience.


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                             DISTRICT COURT ORDER

       The district court determined that the motion was second or successive and had

not been authorized under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(C). It then elected to

dismiss the matter for lack of jurisdiction rather than transfer it to this court for

consideration as a motion for authorization, holding that the interest of justice did not

warrant transfer under the relevant factors set out in In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam). One of these factors is whether the claims asserted

would be time barred if the motion were authorized to proceed. See id. The district

court concluded that the facially untimely claims would not be saved by delayed

accrual under the new-evidence provision in § 2255(f)(4), because Mr. Johnson could

have discovered the facts set out in the affidavit much earlier with the exercise of due

diligence. The district court also rejected equitable tolling under the principle of

actual innocence, see McQuiggin v. Perkins, ___U.S.___, 133 S. Ct. 1924, 1928

(2013), because the new evidence offered by Mr. Johnson failed to show that he was

innocent not only of the offense of conviction but of another charge (felon in

possession of a firearm) dismissed in return for his plea. See Bousley v. United

States, 523 U.S. 614, 624 (1998) (“In cases where the Government has forgone more

serious charges in the course of plea bargaining, [a prisoner’s] showing of actual

innocence must also extend to those charges.”). Finally, the district court noted that

the motion was not made in good faith, because Mr. Johnson knew from past filings

of the need for authorization. See In re Cline, 531 F.3d at 1252.


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                                  COA ANALYSIS

      Mr. Johnson seeks to appeal the district court’s order, arguing that (1) his

motion was not second or successive, (2) equitable tolling for actual innocence

should apply, and (3) the district court violated his due process and equal protection

rights by failing to give him a chance to develop the record before disposing of the

motion.1 To obtain a COA for this appeal involving procedural rulings, Mr. Johnson

must show reasonable jurists would find it debatable “whether [his motion] states a

valid claim of the denial of a constitutional right” and “whether the district court was

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

A. Successiveness Determination

      Mr. Johnson does not dispute (and court records show) he previously filed a

§ 2255 motion that was denied on the merits. Thus, the instant motion is, on its face,

second or successive. Of course, if the claim he now asserts did not exist when he

previously pursued § 2255 relief, the motion would not be second or successive. See

In re Weathersby, 717 F.3d 1108, 1110-11 (10th Cir. 2013) (per curiam) (holding


      1
         Mr. Johnson’s overarching contention is that his motion was not successive
because the claim it raises did not exist until Ms. Bennett recently revealed the source
of the marijuana attributed to him. He does not specifically target the analytically
subsequent decision not to transfer the matter to this court for consideration of
authorization (nor does he contend he meets the conditions for authorization under
§ 2255(h)). Yet the second issue noted above relates only to the decision whether to
transfer the successive motion, because application of the statute of limitations has
nothing to do with the antecedent determination whether the motion is successive.
Liberally construing his pro se filings, we will consider whether the no-transfer
decision was erroneous on the grounds asserted in the second and third issues.


                                          -4-
second § 2255 motion is not successive if “the purported defect did not arise, or the

claim did not ripen, until after the conclusion of the previous petition” (internal

quotation marks omitted)). Mr. Johnson invokes that principle, contending his claim

arose only upon his discovery of the facts related by Ms. Bennett.

      This contention reflects a basic misunderstanding of the applicable law. The

“narrow exception to the bar on successive § 2255 motions for circumstances where a

particular claim cannot be raised in a defendant’s initial § 2255 motion . . . occurs

where the factual basis for a claim does not yet exist—not where it has simply not yet

been discovered—at the time of a defendant’s first [§ 2255] motion.” United States

v. Williams, 790 F.3d 1059, 1068 (10th Cir. 2015) (emphasis added). In Williams the

defendant alleged his plea was invalid due to fabrication of evidence and other police

misconduct that he had recently discovered. Noting the claim involved matters that

occurred before the defendant filed his first § 2255 motion, we explained: “Although

the proof of those allegations may not have been available to [the defendant] when he

filed his first [§ 2255 motion], newly available proof implicates the newly discovered

evidence exception in § 2255(h)(1), not whether [the defendant’s] claim should be

treated as an initial [§ 2255 motion].” Id. at 1069. The same is true here. None of

the matters related by Ms. Bennett constitute a factual basis that did not yet exist—as

opposed to simply being undiscovered—when Mr. Johnson pursued his first § 2255

motion. In light of Williams, the propriety of the district court’s determination that

the instant motion was second or successive is beyond reasonable debate.


                                          -5-
B. Decision not to Transfer

       The district court concluded dismissal rather than transfer of Mr. Johnson’s

successive motion was appropriate. It gave two reasons: the motion would likely be

time-barred if authorized; and Mr. Johnson, who had already been told multiple times

of the need to obtain authorization before filing successive § 2255 motions, was not

entitled to a transfer in light of his disregard of this procedural requirement. We need

not delve into the details of the district court’s time-bar analysis, because “when, as

here, a party is aware or should be aware that [his] unauthorized second or successive

motion cannot be heard in the district court, transfer may be denied on the basis that

the filing was not made in good faith.” United States v. Bradford, 552 F. App’x 821,

823 (10th Cir. 2014) (denying COA for review of decision to dismiss rather than

transfer successive § 2255 motion); see also Small v. Millyard, 488 F. App’x 288,

291 (10th Cir. 2012) (same disposition of successive § 2254 petition).

C. Failure to Hold a Hearing

       Mr. Johnson contends the district court’s failure to hold a hearing violated his

due process rights because his liberty is ultimately at stake in this proceeding.2 He

cites no statutory authority or case law requiring the district court to hold a hearing

before determining that a § 2255 motion or habeas petition is second or successive or

that a transfer to this court for consideration of authorization is not in the interest of
       2
       He also refers in passing to equal protection, but he fails to develop any
argument warranting appellate review in that regard. See United States v. Muñoz,
812 F.3d 809, 821 n.12 (10th Cir. 2016).


                                           -6-
justice. We need not opine on whether a hearing could ever be constitutionally

required for such determinations, because here the outcome was clearly dictated by

legal principles rendering a hearing superfluous.

      For the above reasons, we deny a COA and dismiss this appeal.


                                               Entered for the Court




                                               ELISABETH A. SHUMAKER, Clerk




                                         -7-
