                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 February 10, 2014
                               TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                     Clerk of Court

UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 13-3093
                                            (D.C. Nos. 2:12-CV-02191-CM and
v.
                                                  2:09-CR-20143-CM-1)
                                                        (D. Kansas)
KENNETH RAYFORD,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      This matter is before the court on Kenneth Rayford’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.

Rayford seeks a COA so he can appeal two discrete district court orders: (1) the

merits-based denial of his 28 U.S.C. § 2255 motion and (2) the dismissal of his

Fed. R. Civ. P. 59(e) motion for reconsideration on the ground the request for

reconsideration was actually an improper second or successive § 2255 motion.

See 28 U.S.C. § 2253(c)(1)(B) (providing that no appeal is allowed from a “final

order in a proceeding under section 2255” unless the movant first obtains a COA).

This court grants Rayford’s request to proceed on appeal in forma pauperis.

Nevertheless, because he has not “made a substantial showing of the denial of a
constitutional right,” id. § 2253(c)(2), this court denies Rayford’s request for a

COA and dismisses this appeal. 1

      Rayford pleaded guilty to two counts of bank robbery, one count of

attempted bank robbery, and one count of carrying or using a firearm during and

in relation to the attempted bank robbery. United States v. Rayford, 466 F. App’x

687, 687-88 (10th Cir. 2011). On direct appeal, this court affirmed the

substantive reasonableness of the 168-month sentence of imprisonment imposed

by the district court. Id. at 692. Thereafter, Rayford filed the instant, timely

§ 2255 motion, asserting his trial counsel was ineffective because he failed to

seek suppression of evidence obtained when the government attached to his car,

without a warrant, a satellite tracking device. In support of this assertion,

Rayford cited the Supreme Court’s recent decision in United States v. Jones, 132

S. Ct. 945 (2012) (holding that attachment of a satellite tracking device to an

individual’s vehicle, and the subsequent use of that device to monitor the

vehicle’s movements on public streets, constitutes a search or seizure). Applying

the familiar paradigm set out by the Supreme Court in Strickland v. Washington,



      1
        Rayford timely filed his notice of appeal within sixty days of the district
court’s disposition of his Rule 59(e) motion. Thus, this court has appellate
jurisdiction to consider Rayford’s request for a COA as to both dispositions
identified above. Fed. R. App. P. 4(a)(4). This is true even though, as explained
infra, the district court properly construed Rayford’s Rule 59(e) motion as an
improper second or successive habeas petition. Cf. United States v. Ibarra, 502
U.S. 1, 6-7 (1991).

                                         -2-
466 U.S. 668 (1984), the district court concluded Rayford was not entitled to

collateral relief. In particular, the district court concluded Rayford could not

demonstrate his counsel had performed deficiently because Jones was not decided

until well after the completion of Rayford’s trial-court proceedings and it was not

reasonable to expect counsel to anticipate the Jones decision. 2


      2
          In so concluding, the district court reasoned as follows:

      [A]t the time [Rayford’s] case was pending before this court, counsel
      did not have the benefit of Jones’s guidance. In fact, counsel had
      very little guidance at all. While Circuits were beginning to weigh in
      on the propriety of using GPS devices to track vehicle movements,
      the majority of those considering the issue found contrary to Jones
      based on the application of existing Supreme Court law. See United
      States v. Marquez, 605 F.3d 604, 609-10 (8th Cir. May 21, 2010)
      (finding no warrant necessary to install a GPS device on a vehicle for
      a reasonable time period); United States v. Pineda-Moreno, 591 F.3d
      1212, 1216-17 (9th Cir. Jan. 11, 2010) (holding the use of a GPS on
      a vehicle for four months did not violate the Fourth Amendment);
      United States v. Garcia, 474 F.3d 994, 996–98 (7th Cir. 2007)
      (holding no warrant required to use a GPS to track a vehicle); see
      also United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011)
      (holding that the use of a GPS that was not being used to
      continuously monitor the defendant was not a search, but decided
      well after the defendant in this case was sentenced). But see United
      States v. Maynard, 615 F.3d 544 (D.C. Cir. Aug. 6, 2010) (holding
      that using a GPS for 28 days to monitor the defendant’s movements
      was unconstitutional, but decided after the defendant in this case
      entered his guilty plea). The Tenth Circuit had not addressed the
      issue, but the Supreme Court in United States v. Knotts had held that
      “a person traveling in an automobile on public thoroughfares has no
      reasonable expectation of privacy in his movements from one place
      to another.” 460 U.S. 276, 281 (1983). This was the state of the
      case law around the time defense counsel was making strategic
      decisions about representing [Rayford] in this case.
                                                                      (continued...)

                                           -3-
      In response to the district court’s denial of his § 2255 motion, Rayford filed

a Fed. R. Civ. P. 59(e) motion for reconsideration. In his Rule 59(e) motion,

Rayford asserted the district court erred in denying his § 2255 motion and that

this court’s decision in United States v. Shovea, 580 F.2d 1382 (1978), made the

district court’s error manifest. 3 Rayford further asserted that because he had cited

Shovea in his original § 2255 motion and the district court failed to discuss the

case, the district court should reconsider its denial of the § 2255 motion.

      The district court concluded Rayford’s motion for reconsideration was

properly characterized as a second or successive habeas petition because it

reasserted a basis for relief from Rayford’s convictions that would lead

“‘inextricably to a merits-based attack on the disposition of [his] prior habeas

petition.’” District Ct. Order of March 25, 2013, at 2 (quoting Spitznas v. Boone,


      2
       (...continued)
             An attorney does not provide ineffective representation when
      he or she “fail[s] to predict future law.” Bullock v. Carver, 297 F.3d
      1036, 1052 (10th Cir. 2002) (quotation omitted) . . . .

District Ct. Order of December 13, 2012, at 2-3.
      3
       Rayford’s arguments regarding Shovea are well off the mark. The Shovea
court specifically declined to decide whether “the installation of an electronic
tracking device on a motor vehicle was a search or seizure within the protection
of the Fourth Amendment” because it was “convinced the intrusion . . . ,
assuming arguendo that it is a search or seizure within the ambit of the Fourth
Amendment, was justified by probable cause and exigent circumstances.” 580
F.2d at 1387. Thus, Shovea does not support Rayford’s assertion his counsel
performed deficiently when he failed to file a suppression motion prior to
Rayford’s decision to enter a guilty plea.

                                         -4-
464 F.3d 1213, 1216 (10th Cir. 2006) (setting out standard for determining

whether purported Fed. R. Civ. P. 60(b) motions are actually second or successive

motions or petitions)); see also United States v. Pedraza, 466 F.3d 932, 933 (10th

Cir. 2006) (holding standards set out in Spitznas apply to Rule 59(e) motions).

Concluding it lacked jurisdiction to consider Rayford’s motion for reconsideration

because Rayford had not obtained prior approval from this court to file such a

motion, 28 U.S.C. § 2255(h), the district court moved on to consider whether it

was appropriate to transfer the motion to this court. See In re Cline, 531 F.3d

1249, 1252 (10th Cir. 2008); 28 U.S.C. § 1631. Concluding such a transfer was

not in the interests of justice, the district court dismissed the motion for

reconsideration for lack of jurisdiction. Cline, 531 F.3d at 1251.

      The granting of a COA is a jurisdictional prerequisite to Rayford’s appeal

from the denial of his § 2255 motion and dismissal of his motion for

reconsideration. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be entitled

to a COA, Rayford must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he

must demonstrate “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 adequate to deserve encouragement to proceed further.” Id.

(quotations omitted). In evaluating whether Rayford has satisfied his burden, this

court undertakes “a preliminary, though not definitive, consideration of the [legal]

                                          -5-
framework” applicable to each of his claims. Id. at 338. Although Rayford need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Rayford’s appellate filings, the district

court’s order, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Rayford is not entitled to

a COA. The district court’s resolution of Rayford’s § 2255 motion is not

reasonably subject to debate and the issues he seeks to raise on appeal are not

adequate to deserve further proceedings. Likewise, it is beyond debate that

Rayford’s purported Rule 59(e) motion was, in actuality, a second or successive

§ 2255 motion. Accordingly, this court DENIES Rayford’s request for a COA

and DISMISSES this appeal. All of Rayford’s numerous outstanding motions are

hereby DENIED.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




                                         -6-
