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

                             FOR THE TENTH CIRCUIT                             February 22, 2017
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 16-2242
                                                 (D.C. Nos. 1:16-CV-00900-JAP-LAM &
MATTHEW MOWERY,                                          1:08-CR-02436-JAP-1)
                                                                (D. N.M.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

       Pro se federal prisoner Matthew Mowery seeks a certificate of appealability

(COA) to appeal the district court’s dismissal of his motion under the Criminal Justice

Act of 1964, 18 U.S.C. § 3006A, as an unauthorized second or successive 28 U.S.C.

§ 2255 motion. We deny a COA and dismiss this matter.

       In 2009, Mr. Mowery pleaded guilty to possession with intent to distribute 500

grams and more of a mixture and substance containing a detectible amount of

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

dismissed his direct appeal. In 2010, through counsel, he filed a § 2255 motion alleging

that he received ineffective assistance of counsel in his plea negotiations and at

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
sentencing. The district court denied the motion, and this court denied a COA and

dismissed the appeal, United States v. Mowery, 512 F. App’x 824, 830 (10th Cir. 2013).

The district court then dismissed subsequent post-judgment motions as unauthorized

second or successive § 2255 motions, and this court again denied a COA and dismissed

the appeal, United States v. Mowery, 594 F. App’x 546, 548 (10th Cir. 2015).

       In 2016, Mr. Mowery filed a document entitled “Defendant’s PRO SE Motion

Requesting a Special Discovery Hearing to Determine if the Level of Court-Appointed

Representation Was Adequate, Pursuant to the Criminal Justice Act (18 USC § 3006A),”

in which he complained that his counsel’s ineffectiveness in his criminal case violated

§ 3006A and his constitutional rights. The district court clerk docketed the motion as one

under § 2255. Mr. Mowery objected to the clerk characterizing his motion as a § 2255

motion. The district court determined, however, that the motion attacked the validity of

Mr. Mowery’s conviction, and therefore it properly was a § 2255 motion. Because it was

an unauthorized, successive § 2255 motion, the district court dismissed it for lack of

jurisdiction. Mr. Mowery now seeks to appeal.

       To appeal, Mr. Mowery must obtain a COA. See United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008). Where, as here, a district court has dismissed a

filing on procedural grounds, for a COA the movant 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).



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Although Mr. Mowery argues the merits of his claims, we need not consider the merits

aspect of the Slack test because he has not satisfied the procedural aspect.

       Mr. Mowery objects that the district court clerk filed his document as a § 2255

motion. He states that by so doing, the clerk “place[d] the Appellant into the ‘rabbit

holes’ of procedure,” divested him of his constitutional rights to access the courts and to

due process, and “preclude[d] the presiding District Court Judge to be able to investigate

the claims properly for resolution, to keep pertinent information ‘swept under the rug’ of

justice.” Opening Br./Request for COA at 5.

       Mr. Mowery misunderstands the situation. The clerk performed a merely

ministerial action in docketing the document as a § 2255 motion. In due course, the

district judge evaluated the filing and determined, in an exercise of judicial

decision-making, that it should be treated as an unauthorized successive § 2255 motion.

The clerk’s actions did not constrain the judge’s decision or have any effect on

Mr. Mowery’s rights.

       Further, no reasonable jurist could debate the district court’s conclusion that

Mr. Mowery’s filing, ostensibly under § 3006A, was in reality a § 2255 motion.

“28 U.S.C. § 2255 is the exclusive remedy for a federal prisoner attacking the legality of

his detention.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (internal

quotation marks omitted). “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 . . . .” United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)

(internal quotation marks omitted). “It is the relief sought, not his pleading’s title, that

                                               3
determines whether the pleading is a § 2255 motion.” Id. at 1149. Mr. Mowery sought

to attack the validity of his conviction by asserting that his counsel’s performance

violated his statutory and constitutional rights. Therefore, his motion was, in essence, a

§ 2255 motion. The district court did not err in treating the motion as such.

       Moreover, Mr. Mowery previously sought relief under § 2255, making this motion

an unauthorized successive § 2255 motion. “[I]f the prisoner’s pleading must be treated

as a second or successive § 2255 motion, the district court does not even have jurisdiction

to deny the relief sought in the pleading.” Id. at 1148. Accordingly, no reasonable jurist

could debate the district court’s decision to dismiss the filing for lack of jurisdiction.

       The motion for leave to proceed on appeal without prepayment of costs or fees is

granted. But only prepayment of fees is waived, not the fees themselves. 28 U.S.C.

§ 1915(a)(1). A COA is denied and this matter is dismissed.


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




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