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

                             FOR THE TENTH CIRCUIT                         September 12, 2016
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 15-8136
                                                  (D.C. Nos. 2:14-CV-00048-NDF &
JASON CLAYCOMB,                                        2:07-CR-00196-CAB-5)
                                                              (D. Wyo.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before GORSUCH, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Jason Claycomb, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to challenge the district court’s decision construing his

Fed. R. Civ. P. 59(e) motion as an unauthorized second or successive 28 U.S.C.

§ 2255 motion and dismissing it for lack of jurisdiction. We deny a COA and

dismiss this matter.

      A jury convicted Mr. Claycomb of the following drug trafficking and firearm

offenses: (1) conspiracy to possess with intent to distribute, and to distribute,

methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

and 846; (2) possession of a machine gun in furtherance of a drug trafficking crime,

      *
         This order is not binding precedent, except under the doctrines of law of the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.
in violation of 18 U.S.C. § 924(c)(1)(B)(ii); and (3) unlawful possession of an

unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871.

He was sentenced to consecutive thirty-year terms for the first two offenses and a

concurrent ten-year term for the third offense.

       We affirmed Mr. Claycomb’s convictions and sentence on direct appeal;

however, the district court later vacated the ten-year concurrent sentence on

ineffective-assistance-of-counsel grounds when it granted, in part, his initial § 2255

motion. Since that time, he has filed an unauthorized second or successive § 2255

motion, which the district court dismissed for lack of jurisdiction. He also has filed

two Fed. R. Civ. P. 60(b) motions, which the district court dismissed as unauthorized

second or successive § 2255 motions.

       Mr. Claycomb’s latest attempt to circumvent the authorization requirement

comes in the form of a motion under Fed. R. Civ. P. 52(a) and 59(e), filed on June 1,

2015, with an attached memorandum of law in support of a motion to vacate under

28 U.S.C. § 2255(f)(4) (which he did not file separately). In his Rule 59(e) motion,

he asked the district court to reconsider its denial of his last § 2255 motion, at least

with respect to the drug quantities underlying his conviction. He repeated arguments

from his prior § 2255 motion, asserting once again that newly discovered evidence

shows the government did not establish all of the elements of the drug offenses

through a credible lab report. He cited, in particular, a 2007 laboratory report by the

Division of Criminal Investigation and excerpts from his co-defendant’s plea hearing

in 2008.

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       In an order dated December 3, 2015, the district court concluded that

Mr. Claycomb’s Rule 59(e) motion itself is a second or successive § 2255 motion,

notwithstanding its title. 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). 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).

Consequently, the district court dismissed the motion for lack of jurisdiction.

       The district court explained that like a Rule 60(b) motion, a Rule 59(e) motion

that “‘in substance or effect asserts [or reasserts] a federal basis for relief from the

petitioner’s underlying conviction’ is actually a second or successive . . . § 2255

motion and requires authorization by the circuit court in order to proceed in district

court.” Claycomb v. United States, No. 2:14-cv-00048-NDF, Doc. 29 (Order

Dismissing Petitioner’s Motion under Fed. R. Civ. P. 52(a)/59(e)) at 5 (D. Wyo.

Dec. 3, 2015) (quoting United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006)).

It further explained that one motion that falls into this category is a motion seeking

leave to present “newly discovered evidence” to advance the merits of a claim that

was denied previously. Id. at 5-6 (citing Spitznas v. Boone, 464 F.3d 1213, 1215

(10th Cir. 2006)). It then dissected the Rule 59(e) motion and found that, in essence,

Mr. Claycomb was reasserting a federal basis for relief from his underlying

conviction. And it found Mr. Claycomb was not entitled to an exception to the bar

on successive § 2255 motions under United States v. Williams, 790 F.3d 1059, 1068

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(10th Cir.), cert. denied, 136 S. Ct. 604 (2015), because the evidence in question

existed at the time he filed his initial § 2255 motion.

       Mr. Claycomb now seeks a COA under 28 U.S.C. § 2253(c) to challenge this

decision. To obtain one, he must show 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). Even reviewing Mr. Claycomb’s application with the

liberality due pro se applicants, see Garza v. Davis, 596 F.3d 1198, 1201 n.2

(10th Cir. 2010), reasonable jurists could not debate that the district court was correct

in its procedural ruling to treat Mr. Claycomb’s Rule 59(e) motion as an unauthorized

second or successive § 2255 motion and to dismiss it for lack of jurisdiction.

Accordingly, we deny a COA and dismiss this matter.

       Mr. Claycomb’s request to proceed on appeal without prepayment of costs or fees

is denied as moot. The relevant statute, 28 U.S.C. § 1915(a)(1), does not permit litigants

to avoid payment of filing and docketing fees, only prepayment of those fees. Since we

have reached the merits of this matter, prepayment of fees is no longer an issue. Though

we have disposed of this matter on the merits, Mr. Claycomb remains obligated to pay all

filing and docketing fees, a total of $505. He is directed to pay the fees in full to the

Clerk of the District Court for the District of Wyoming.




                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk
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