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

                             FOR THE TENTH CIRCUIT                                July 12, 2017
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 17-2067
                                                     (D.C. No. 2:10-CR-02603-WJ-1)
VERNON EARL COLEMAN,                                            (D. N.M.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

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

       Vernon Earl Coleman, a federal prisoner appearing pro se, requests a certificate of

appealability (COA) to appeal the district court’s dismissal of his “Motion to

Correct Sentence.” He was convicted in 2011 of possession with intent to distribute

100 kilograms and more of marijuana and sentenced to 164 months’ imprisonment. After

a number of unsuccessful collateral challenges to his conviction and sentence, he filed the

instant motion asking to be sentenced based on a criminal history category of IV and an

offense level of 31 (with a further reduction of 3 points for acceptance of responsibility),




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
which he claimed had been the judge’s direction at the sentencing hearing.1 The district

court determined that the motion was in substance a second or successive motion for

relief under 28 U.S.C. § 2255, and dismissed it for lack of the circuit authorization

required by 28 U.S.C. § 2244(b)(3). Because the correctness of that disposition is not

debatable by reasonable jurists, we deny a COA and dismiss this appeal. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (stating standard for COA).

       In his combined opening brief and request for a COA, Mr. Coleman just reasserts

the substantive claim advanced in his motion, without addressing the dispositive

jurisdictional deficiency explained by the district court. The motion, which sought to

remedy an alleged error in his sentence, fell squarely under § 2255 (providing remedy for

claim that “sentence was imposed in violation of the Constitution or laws of the United

States . . . or is otherwise subject to collateral attack”). See also Caravalho v. Pugh,

177 F.3d 1177, 1178 (10th Cir. 1999) (unless inadequate or ineffective, a motion for

relief under § 2255 is “[t]he exclusive remedy for testing the validity of a judgment and

sentence” (internal quotation marks omitted)). And, as the district court explained,

before a second or successive § 2255 motion may be pursued, the defendant must obtain

authorization from the circuit court under 28 U.S.C. §§ 2255(h) and 2244(b)(3). See

       1
         Actually, the court’s statement of reasons for sentence reflects application of the
career-offender guideline (consistent with the presentence report the court expressly
adopted) based on prior drug offenses, resulting in use of criminal history category VI
and an offense level of 34 (reduced to 31 for acceptance of responsibility). See United
States Sentencing Guideline Manual § 4B1.1(b)(2). The court’s reference to category IV
in the sentencing excerpt cited by Mr. Coleman is not to the contrary; it was simply
observing that, with a 24-month downward variance it was giving Mr. Coleman (for other
reasons), the result was consistent with a criminal history category IV sentence, though
the court expressly disavowed departing downward with respect to criminal history.
                                              2
In re Cline, 531 F.3d 1249, 1250 (10th Cir. 2008). Mr. Coleman’s failure to do this left

the district court with only two options, neither of which entailed granting him any relief

on the merits: either dismiss the motion for lack of jurisdiction or transfer it to this court

to allow Mr. Coleman to seek authorization. See id. at 1252. The district court followed

clear circuit precedent in choosing the first option.

       A district court properly exercises its discretion in dismissing rather than

transferring an unauthorized second or successive § 2255 motion “[w]here there is no risk

that a meritorious successive claim will be lost,” as when the motion “fails on its face to

satisfy any of the authorization standards of § 2255(h),” In re Cline, 531 F.3d at 1252.

That is the case here. Mr. Coleman’s sentencing challenge, in contrast to a challenge to a

conviction, cannot satisfy the requirement in § 2255(h)(1) that a prisoner present new

evidence to show “that no reasonable factfinder would have found him guilty of the

[underlying] offense.” (Emphasis added); see also In re Webster, 605 F.3d 256, 257

(5th Cir. 2010) (noting plain language of § 2255(h)(1) compels conclusion that it cannot

be satisfied by defendant challenging sentence rather than conviction). Nor does his

claim rely on a “new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court,” as required to satisfy § 2255(h)(2). Thus, it would have

been patently futile to transfer Mr. Coleman’s claim for consideration of authorization

under § 2255(h)—as the district court made clear in its decision.

       We deny a COA and dismiss this appeal. Mr. Coleman’s motion for leave to

proceed in forma pauperis is denied because he has not advanced a reasoned argument on

the law or facts in support of the appeal. DeBardeleben v. Quinlan, 937 F.2d 502, 505

                                              3
(10th Cir. 1991). He is reminded that he remains responsible for paying the full filing fee

for this appeal. See 28 U.S.C. § 1915(a), (b).


                                             Entered for the Court



                                             ELISABETH A. SHUMAKER, Clerk




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