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

                             FOR THE TENTH CIRCUIT                             January 31, 2019
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 18-8048
                                                    (D.C. No. 2:07-CR-00196-CAB-5)
 JASON CLAYCOMB,                                                (D. Wyo.)

       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before LUCERO, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

       Jason Claycomb, proceeding pro se, seeks a certificate of appealability (COA) to

appeal the district court’s order construing his Fed. R. Civ. P. 60(b) motion as an

unauthorized second or successive 28 U.S.C. § 2255 motion and dismissing it for lack of

jurisdiction. We deny a COA and dismiss this matter.

       Mr. Claycomb was convicted after a jury trial of (1) conspiracy to possess with

intent to distribute, and to distribute, methamphetamine and cocaine, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; (2) possession of a machine gun in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B)(ii); and



       
         This order is not binding precedent except under the doctrines of law of the case,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.
(3) unlawful possession of an unregistered firearm, in violation of 26 U.S.C. §§ 5841,

5845(a), 5861(d), and 5871. He was sentenced to 60 years’ imprisonment. We affirmed

his convictions and sentence on direct appeal. United States v. Claycomb, 372 F. App’x

832, 841 (10th Cir. 2010). In 2011, Mr. Claycomb filed his first § 2255 motion based on

several claims of ineffective assistance of counsel. The district court partially granted the

motion and vacated his conviction for unlawful possession of an unregistered firearm.

Mr. Claycomb has since filed a number of unsuccessful post-judgment motions

attempting to collaterally attack his convictions. Most recently, he filed the underlying

Rule 60(b) motion in which he requested reopening of his prior proceedings under

§ 2255. The district court determined that the motion was an unauthorized second or

successive § 2255 motion and dismissed it for lack of jurisdiction.

       Mr. Claycomb now seeks a COA under 28 U.S.C. § 2253(c) to appeal from that

dismissal. To obtain a COA, Mr. Claycomb must show “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 datable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We need only reach

the second component of this standard to determine Mr. Claycomb has not satisfied his

burden. See id. at 485.

        A pleading should be treated as a second or successive § 2255 motion, rather

than a true 60(b) motion, “if it in substance or effect asserts or reasserts a federal basis for

relief from the petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213,

1215 (10th Cir. 2006). “It is the relief sought, not [the] pleading’s title, that determines

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whether the pleading is a § 2255 motion.” United States v. Nelson, 465 F.3d 1145, 1149

(10th Cir. 2006). A prisoner may not file a second or successive § 2255 motion without

authorization from this court. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). The district

court lacks jurisdiction to consider the merits of a second or successive § 2255 motion

absent authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

       In his motion filed in district court, Mr. Claycomb sought equitable relief under

Rule 60(b) “based upon fraud and multiple misrepresentations” committed by the

government. R., Vol. I at 165. He asserted he had new evidence related to the chain of

custody of drug evidence used against him in his criminal case and requested reopening

of his prior § 2255 proceedings and an evidentiary hearing on that basis. The district

court concluded Mr. Claycomb’s motion attempts to offer new evidence to dispute his

sentence and is therefore challenging his underlying conviction rather than any

procedural rulings of his prior habeas proceedings, and is therefore a second or

successive § 2255 motion. Because Mr. Claycomb had not obtained the proper

authorization from this court to file a second or successive § 2255 motion, the district

court dismissed the motion for lack of jurisdiction and denied a COA.

       In his COA application to this court, Mr. Claycomb argues the purported new

evidence regarding the chain of custody of drug evidence in his underlying criminal case

necessitates an evidentiary hearing to determine whether a new trial or reopening of his

§ 2255 proceedings is warranted. But he fails to offer any argument why the district

court was incorrect in its procedural ruling construing his motion as a second or

successive § 2255 motion over which it lacked jurisdiction. In fact, in arguing the district

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court erred in declining to conduct an evidentiary hearing, Mr. Claycomb cites the

standard for determining whether to grant an evidentiary hearing under 28 U.S.C.

§ 2255(b), which supports the district court’s determination that he intended to file his

motion under § 2255, rather than under Rule 60(b). Reasonable jurists could not debate

that the district court was correct in its procedural ruling to construe his 60(b) motion as

an unauthorized second or successive § 2255 motion and dismiss it for lack of

jurisdiction. Accordingly, we deny a COA and dismiss this matter.


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




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