                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     May 23, 2014
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                     No. 14-4029
                                             (D.C. Nos. 2:09-CV-00654-TS and
 TAE H. CHON,                                      2:01-CR-00487-TS-1)
                                                         (D. Utah)
          Defendant - Appellant.



                              ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      In years past this court has affirmed Tae Chon’s federal criminal conviction

and rejected two collateral challenges to that conviction. See United States v.

Chon, 291 F. App’x 877, 883 (10th Cir. 2008); United States v. Chon, 434 F.

App’x 730 (10th Cir. 2011); United States v. Chon, 512 F. App’x 855, 858-59

(10th Cir. 2013). Today we are presented with a third collateral challenge. After


      *
         After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent except under the doctrines of law of the case, res judicata,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.
the district court refused to grant relief, Mr. Chon filed papers with this court

seeking a certificate of appealability (COA) under 28 U.S.C. § 2253 and with it

the opportunity to contest this latest adverse ruling.

        But as it happens Mr. Chon wasn’t entitled to proceed in district court in

the first place. When it comes to second or successive collateral attacks on

federal criminal convictions, they must be authorized by this court before they

may lawfully proceed in district court. See 28 U.S.C. § 2255(h). Only after

exhausting this process may a movant then seek a COA to pursue an appeal of an

adverse district court ruling in a second or successive collateral challenge. Put

simply, then, there is no lawful COA request before us, no proper appeal, and

there was no lawful proceeding in district court.

        That, however, does not necessarily doom Mr. Chon’s current claim.

Rather than dismiss the action outright, we may construe his putative COA

application as a petition to pursue a second or successive collateral proceeding

under § 2255(h). See Spitznas v. Boone, 464 F.3d 1213, 1219 n.8 (10th Cir.

2006). Doing so here, though, we find no such proceeding lawfully warranted.

Before authorizing a second or successive petition, this court must be able to say

that the movant has presented newly discovered evidence suggesting his

innocence, or that he’s identified a new rule of constitutional law retroactively

applicable to his case. See 28 U.S.C. § 2255(h). Neither circumstance pertains

here.

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The request to pursue a third § 2255 motion is denied.

                         ENTERED FOR THE COURT



                         Neil M. Gorsuch
                         Circuit Judge




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