                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 27, 2010
                      UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                         No. 09-3276
                                             (D.C. Nos. 6:03-CR-10140-JTM-1;
 v.                                                 6:09-CV-1112-JTM)
                                                          (D. Kan.)
 JERRY LEE WILLIAMS,

          Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Jerry Lee Williams seeks a certificate of appealability (“COA”) to appeal

the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C.

§ 2255. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255(d). We

discern no error in the district court’s ruling and thus deny the COA and dismiss

this matter.


      *
          This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1. After examining the briefs and the appellate record, this
three-judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this matter. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument.
                                I. BACKGROUND

      Mr. Williams was convicted in 2003 of being a felon in possession of a

firearm. Because he had previously been convicted of three violent felonies, 1 the

district court applied the Armed Career Criminal Act, see 18 U.S.C. § 924(e), and

enhanced his sentence. Mr. Williams has since appeared three times before

us—twice on direct appeal and once on a prior § 2255 habeas petition.

      Mr. Williams, who is represented by counsel, then filed the present § 2255

petition with the district court. Such a “second or successive” habeas motion may

only proceed if it is based on, inter alia, “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.” 28 U.S.C. § 2255(h); see also id. § 2244(b)(2)(A).

Though he did not cite this standard, Mr. Williams claimed that he was entitled to

relief because recent Supreme Court cases—starting with Begay v. United States,

553 U.S. 137 (2008)—had dramatically altered how courts interpret “violent

felonies” for sentence-enhancement purposes. These cases, Mr. Williams urged,

      1
             As we have previously noted:

             The government actually presented evidence of four prior
             violent felonies: a 1971 conviction for first degree robbery; a
             1973 conviction for second degree murder; a 1984 conviction
             for aggravated assault, battery and robbery, felony theft and
             unlawful possession of a firearm; and a 1993 conviction for
             conspiracy to commit bank robbery.

United States v. Williams, 403 F.3d 1188, 1198 n.9 (10th Cir. 2005) (emphasis
added).

                                         -2-
raised the possibility that two of his four relevant felonies might on reexamination

be deemed not “violent,” a finding that would mean that Mr. Williams’s enhanced

sentence was unjustified.

      But Mr. Williams made a procedural mistake. He filed his petition with the

district court when he should have filed it with this court. “Before a second or

successive application permitted by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals for an order authorizing

the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A); see

also id. § 2255(h) (“A second or successive motion must be certified as provided

in section 2244 by a panel of the appropriate court of appeals . . . .”). Realizing

his error, Mr. Williams filed another motion asking the district court to transfer

his petition to this court pursuant to 28 U.S.C. § 1631.

      The district court noted that § 1631 provides that a misfiled petition shall

be transferred “if it is in the interest of justice,” and that a key factor in deciding

if a transfer is appropriate is whether “‘the claims are likely to have merit.’”

Williams v. United States, Nos. 03-10140, 09-1112, 2009 WL 2355277, at *1 (D.

Kan., July 29, 2009) (quoting Trujillo v. Williams, 465 F.3d 1210, 1223 n.16

(10th Cir. 2006)). The district court found that Mr. Williams’s claim was

meritless because he did “not articulate any grounds which would authorize relief

under § 2255(h).” Id. at *2. To establish “a new rule of constitutional law,” Mr.

Williams sought to rely on Begay. But that decision decided a question of

                                           -3-
statutory interpretation, not constitutional law, so it could not satisfy § 2255(h).

The district court accordingly denied Mr. Williams’s motion to transfer and

dismissed the § 2255 petition for lack of jurisdiction. See, e.g., United States v.

Harper, 545 F.3d 1230, 1232 (10th Cir. 2008) (“[T]he district court had to

dismiss [the] claim for lack of jurisdiction because it bears no authority to

entertain second or successive § 2255 motions unauthorized by this court.”).

      Mr. Williams timely appealed.

                                 II. DISCUSSION

      The district court found that it lacked jurisdiction over Mr. Williams’s

unauthorized second or successive petition and—finding that transfer to this court

was not “in the interest of justice” under § 1631—dismissed it. This procedural

decision constitutes a “final order in a proceeding under section 2255,” 28 U.S.C.

§ 2253(c)(1)(B), and thus Mr. Williams must obtain a COA before he may appeal

to this court. Harper, 545 F.3d at 1233.

      A COA is a jurisdictional prerequisite, requiring a petitioner to make “a

substantial showing of the denial of a constitutional right” before proceeding on

appeal. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Where, as here, the district court denies a petition on procedural grounds, we may

not issue a COA unless “the prisoner shows, at least, 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

                                          -4-
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000).

       Therefore, Mr. Williams must show that reasonable jurists could debate

whether the district court was correct in dismissing the case for lack of

jurisdiction. This in turn requires Mr. Williams to show that the district court was

wrong to deny the motion to transfer under § 1631. He cannot make this

showing, for no reasonable jurist could debate the correctness of the district

court’s conclusion that Begay did not propound “a new rule of constitutional law”

for purposes of § 2255(h). Indeed, Mr. Williams concedes that “courts fully

acknowledge Begay was decided on statutory construction grounds.” Aplt. Br. at

7. 2

       2
              Mr. Williams argues that, even though Begay was decided on
statutory grounds, “that is not to say that all decisions of statutory interpretation
by the Supreme Court can never also effect a new rule of constitutional law.”
Aplt. Br. at 7. To the contrary, he urges, a “petitioner would be able to show a
denial of a constitutional right by being sentenced to a higher sentence . . . than
permitted by the appropriate statute.” Id. at 8.

       If Mr. Williams means that a decision that turns on statutory grounds (like,
for example, Begay) can affect constitutional rights, we agree. See, e.g., United
States v. Shipp, 589 F.3d 1084 (10th Cir. 2009). But this does not mean that such
a decision itself propounds a new rule of constitutional law. In making this
argument Mr. Williams appears to confuse “a new rule of constitutional law”
found in §§ 2244 and 2255 with “a substantial showing of the denial of a
constitutional right” found in § 2253. Because it is indisputable that he did not
(and could not) show that Begay established a new rule of constitutional law, it
also is indisputable that he cannot now establish that the district court’s
procedural decision to dismiss his second or successive petition was erroneous.
And, therefore, Mr. Williams is not legally situated to make a substantial showing
                                                                        (continued...)

                                          -5-
                                 III. CONCLUSION

      The district court correctly determined that it was not in the interest of

justice to transfer Mr. Williams’s unauthorized petition, and the court

consequently properly dismissed the petition for lack of jurisdiction. Mr.

Williams cannot establish that reasonable jurists would question the district

court’s holding. We therefore DENY Mr. Williams a COA and DISMISS the

matter.



                                         Entered for the Court


                                         JEROME A. HOLMES
                                         Circuit Judge




      2
       (...continued)
of a denial of a constitutional right.

                                          -6-
