                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALSNovember 4, 2011
                                                                Elisabeth A. Shumaker
                                  TENTH CIRCUIT                     Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 11-7034
                                                (D.C. No. 6:04-CR-00114-SPF-1)
    MELVIN ELLIS HOLLY,                                   (E.D. Okla.)

                Defendant-Appellant.


           ORDER DENYING A CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, O’BRIEN and GORSUCH, Circuit Judges.



         Melvin Ellis Holly, a federal prisoner proceeding pro se, appeals the

district court’s denial in part and dismissal in part of his “Motion for Severance,

‘Conflict of Interest’ Change of Venue, Pursuant to Rule 18 U.S.C. 3234

Fed. R. Crim. P.” Because this motion attempts to bring unauthorized second or

successive 28 U.S.C. § 2255 claims, we deny a certificate of appealability (COA)

and dismiss this appeal.




*
      This order is not binding precedent, except under the doctrines of law of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.
                                   Background

      Mr. Holly, a former sheriff, was convicted of numerous counts “related to

the sexual abuse of inmates, employees, and an employee’s daughter at the

Latimer County jail.” United States v. Holly, 378 F. App’x 852, 853 (10th Cir.

2010). He has pursued a direct appeal, see United States v. Holly, 488 F.3d 1298

(10th Cir. 2007); a motion to vacate, set aside, or correct his sentence under

28 U.S.C. § 2255, see United States v. Holly, 364 F. App’x 471 (10th Cir. 2010);

and various other forms of relief, see, e.g., United States v. Holly, No. 11-7014,

2011 WL 2356332 (10th Cir. June 15, 2011) (motion for a writ of audita querela);

Holly, 378 F. App’x at 852 (motion for a new trial).

      The “Motion for Severance, ‘Conflict of Interest’ Change of Venue,

Pursuant to Rule 18 U.S.C. 3234 Fed. R. Crim. P.” asserted that: (1) because this

court had reversed some of his convictions in his direct appeal, those counts

should be severed from the remaining counts of conviction; (2) some of the jurors

knew him, requiring a change of venue; (3) his defense counsel had a conflict of

interest because counsel was representing another defendant (whom Mr. Holly

had arrested and jailed at the Latimer County jail) in a separate proceeding;

(4) the then-current United States Attorney had a conflict of interest because he

and Mr. Holly were longtime friends; and (5) in light of these issues, Mr. Holly

was deprived of his liberty without due process. In addition to severance and a

change of venue, Mr. Holly requested a new trial or a reversal of his convictions.

                                        -2-
      Suggesting that the motion to some extent might seek a new trial under

Fed. R. Crim. P. 33, the district court stated that Mr. Holly had not provided

newly discovered evidence sufficient to warrant a new trial, meaning that there

was no reason for severance or a new venue. Thus, the court denied the motion to

the extent it sought a severance, a change of venue, and a new trial. The court

further declared that to the extent that the motion sought to vacate or reverse

Mr. Holly’s convictions, it presented unauthorized second or successive § 2255

claims that the court did not have jurisdiction to consider. Accordingly, it

dismissed the portions of the motion presenting unauthorized second or

successive § 2255 claims. Mr. Holly appeals.

                                      Analysis

      As discussed below, this motion presents second or successive § 2255

claims that are subject to the authorization requirements of § 2255(h). Therefore,

Mr. Holly must obtain a COA to pursue this appeal. United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008). To obtain a COA 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). A COA shall only issue if “reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were

                                          -3-
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,

537 U.S. 322, 336 (2003).

      Under § 2255(h), a second or successive § 2255 motion must be authorized

by this court before it can proceed in the district court. And “[a] district court

does not have jurisdiction to address the merits of a second or successive § 2255

. . . claim until this court has granted the required authorization.” In re Cline,

531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). A prisoner’s post-judgment

filing (however entitled) should be treated like a second or successive § 2255

motion if it asserts or reasserts claims of error in the prisoner’s conviction. See

Gonzalez v. Crosby, 545 U.S. 524, 531-32, 538 (2005); United States v. Nelson,

465 F.3d 1145, 1147 (10th Cir. 2006); see also Melton v. United States, 359 F.3d

855, 857 (7th Cir. 2004) (“Call it a motion for a new trial, arrest of judgment,

mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari,

capias, habeas corpus, ejectment, quare impedit, bill of review, writ of error, or

an application for a Get-Out-Of-Jail Card; the name makes no difference.”). We

recently explained as much to Mr. Holly in connection with his motion for a writ

of audita querela. See Holly, 2011 WL 2356332, at *2.

      “A § 2255 motion is one ‘claiming the right to be released upon the ground

that the sentence was imposed in violation of the Constitution or laws of the

United States . . . or is otherwise subject to collateral attack.” Nelson, 465 F.3d at

1148 (quoting § 2255(a)); see also Gonzalez, 545 U.S. at 532 (stating that a

                                          -4-
motion seeking to add a new ground for relief from a conviction is subject to the

requirements for a second or successive habeas application). Because the

creatively titled motion asserts that Mr. Holly’s sentence was imposed in

violation of the Due Process Clause and the Sixth Amendment, he undoubtedly

seeks to present second or successive § 2255 claims. See also Holly,

2011 WL 2356332, at *2, *4 (holding that Mr. Holly’s claim regarding his

counsel’s purported conflict of interest was a successive § 2255 claim).

Accordingly, the district court did not have jurisdiction to consider the merits of

any portion of the motion. 1

      That is not to say that every Fed. R. Crim. P. 33 new-trial motion is subject

to the authorization requirements. In United States v. Evans, 224 F.3d 670,

673-74 (7th Cir. 2000), the Seventh Circuit recognized that “[a] bona fide motion

for a new trial on the basis of newly discovered evidence falls outside § 2255 ¶ 1

[now § 2255(a)] because it does not contend that the conviction or sentence

violates the Constitution or any statute.” But in Evans the defendant’s motion did

not present a claim of newly discovered evidence justifying a new trial, but

instead presented legal claims that “readily could have been presented under

§ 2255.” Id. at 673. “A defendant whose argument is not that newly discovered



1
       Moreover, Mr. Holly’s motion was filed well out of time to seek a new
trial. He was convicted in 2005, and a Fed. R. Crim. P. 33 motion must be filed,
at most, three years after conviction.

                                         -5-
evidence supports a claim of innocence, but instead that he has new evidence of a

constitutional violation or other ground of collateral attack, is making a motion

under § 2255 . . . no matter what caption he puts on the document.” Id. at 674.

Because Evans’s legal claims were “classic grounds of collateral attack,” the

circuit court held that the district court lacked jurisdiction to consider Evans’s

Rule 33 motion. Id.

      With regard to the instant motion, although the district court erred in

suggesting that some portion of the motion might properly be construed as

seeking relief under Fed. R. Crim P. 33, ultimately it correctly recognized that the

motion presented second or successive § 2255 claims that it lacked jurisdiction to

consider. This matter does not warrant any further proceedings. The application

for a COA is DENIED and this matter is DISMISSED.



                                                Entered for the Court,




                                                ELISABETH A. SHUMAKER, Clerk




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