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

                             FOR THE TENTH CIRCUIT                         August 17, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-7056
                                                   (D.C. No. 6:99-CR-00079-FHS-1)
CHIP J.W. TEAGUE,                                            (E.D. Okla.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Chip Teague seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA. Because the

district court lacked jurisdiction over Teague’s motion, we vacate and remand to the

district court with instructions to dismiss.

                                               I

       Teague was convicted on numerous drug and gun charges in 2000. We

affirmed his convictions on direct appeal. See United States v. Teague, 12 F. App’x

759 (10th Cir. 2001) (unpublished). Teague filed a § 2255 motion in 2001, which

was denied. We rejected Teague’s request for a COA.

       *
         This order is not binding precedent, except under the doctrines of law of the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.
       Teague filed a second § 2255 motion in April 2016, claiming that his

conviction and sentence are unconstitutional in light of the Supreme Court’s decision

in Johnson v. United States, 135 S. Ct. 2551 (2015). The district court denied the

motion for failure to comply with a local procedural rule and did not issue a COA.

Teague now seeks a COA from this court.

                                             II

       When a district court denies a § 2255 motion on procedural grounds, a movant

may obtain a COA only if he shows “that jurists of reason would find it debatable

whether the [motion] 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). We conclude

that Teague has not shown he has a debatably valid claim. “[A] second or successive

§ 2255 motion cannot be filed in district court without approval by a panel of this

court.” United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006); see also

§ 2255(h) (requiring authorization). Accordingly, a “district court does not even

have jurisdiction to deny the relief sought in” a second or successive motion. Nelson,

465 F.3d at 1148. Because Teague filed his motion without authorization from this

court, the district court lacked jurisdiction.

       But we may construe an appeal from the denial of a second or successive

motion as an application to file such a motion. See Spitznas v. Boone, 464 F.3d

1213, 1219 n.8 (10th Cir. 2006). A second or successive habeas motion will be

authorized if it is based on “a new rule of constitutional law, made retroactive to

                                             2
cases on collateral review by the Supreme Court, that was previously unavailable.”

§ 2255(h). Teague claims that his sentence is unconstitutional under Johnson, which

held that the residual clause of the definition of “violent felony” in the Armed Career

Criminal Act (“ACCA”) is unconstitutionally vague. 135 S. Ct. at 2557 (interpreting

18 U.S.C. § 924(e)(2)(B)(ii)). This rule was made retroactive to cases on collateral

review in Welch v. United States, 136 S. Ct. 1257 (2016).

       Teague states that he was sentenced under 18 U.S.C. § 924(c) for using or

carrying a firearm during and in relation to a crime of violence. A portion of the

definition of “crime of violence” contained in 18 U.S.C. § 924(c)(3)(B) is similar to

ACCA’s residual clause. However, Teague was actually convicted of possessing a

firearm during and in relation to a drug trafficking crime under § 924(c)—not a

“crime of violence.” Accordingly, even if Johnson extends to § 924(c), Teague’s

sentence is unaffected and he is not entitled to authorization.

                                           III

       We DENY a COA, VACATE the district court’s denial of Teague’s § 2255

motion, and REMAND to the district court with instructions to dismiss for lack of

jurisdiction.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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