                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 17 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-5030
                                                   D.C. No. 01-CV-716-C
v.
                                                     (N.D. Oklahoma)
LOROAN F. VERNERS,

          Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Pro se petitioner, Laroan Verners, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of his motion to vacate, set


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
aside, or correct sentence brought pursuant to 28 U.S.C. § 2255.           See 28 U.S.C. §

2253(c)(1)(b) (providing that a petitioner may not appeal the denial of a § 2255

motion unless the petitioner first obtains a COA). In 1994, Verners was

convicted of various drug-related offenses and a firearms offense. Verners filed

a direct appeal and one drug-related conviction was reversed.           See United States

v. Verners , 53 F.2d 291, 298 (10th Cir. 1995) [       Verners I ]. Verners was

resentenced on the remaining convictions and the resentencing was affirmed on

appeal. See United States v. Verners , No. 95-5194, 1997 WL 183510 (10th Cir.

April 15, 1997) (unpublished disposition) [         Verners II ]. Verners then filed a §

2255 motion raising several ineffective assistance of counsel claims and a claim

that his firearms conviction must be vacated in light of        Bailey v. United States ,

516 U.S. 137 (1995). The federal district court granted the § 2255 motion in part

and vacated Verners’ firearms conviction. Verners was resentenced on the

remaining convictions.    See United States v. Easterling       , 157 F.3d 1220, 1223-24

(10th Cir. 1998) (discussing sentencing package doctrine).

       At the resentencing, the district court increased Verners’ base offense level

by two points because Verners possessed a firearm during the commission of the

drug offenses.   See U.S.S.G. § 2D1.1(b)(1). Verners appealed, asserting that the

district court erred when it increased his base offense level pursuant to U.S.S.G.

§ 2D1.1(b)(1). This court affirmed the sentence.          See United States v. Verners ,


                                              -2-
No. 98-5044, 1999 WL 332700, at *2 (10th Cir. May 26, 1999) (unpublished

disposition) [ Verners III ]. We also clearly informed Verners that he was not

barred from filing a second § 2255 motion but that any such motion was “          limited

solely to issues related to the resentencing which we are addressing in this direct

appeal.” Id. at *2 n.1 (emphasis in original).

       Thereafter, Verners did not file a timely § 2255 motion but, instead, filed a

“Motion for Tolling Time to File § 2255” seeking equitable tolling of the one-

year limitations period imposed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). The district court denied the motion and Verners

appealed. This court concluded that the question of equitable tolling was not ripe

because Verners had not yet filed his § 2255 motion.       See United States v.

Verners , No. 01-5000, 2001 WL 811719, at *2 (10th Cir. July 17, 2001)

(unpublished disposition) [ Verners IV ]. In Verners IV , we warned Verners that

the claims he indicated he would raise in his § 2255 motion fell “outside of the

narrow boundaries for the filing of a second § 2255 petition set out in    Verners

III .” Id. at *2 n.2.

       Verners then filed his second § 2255 motion and raised three claims. The

first two claims challenged the indictment and the third claim challenged the

constitutionality of 21 U.S.C. § 841. The district court denied all three claims on

the merits. Verners then brought this appeal and seeks a COA.


                                            -3-
      We have reviewed Verners’ § 2255 motion and it is clear that none of the

three claims he raised in that motion involve issues related solely to his

resentencing which were addressed by this court on direct appeal in        Verners III .

All three issues could have been raised in Verners’ first § 2255 motion.      1



Verners’ § 2255 motion, therefore, is a second or successive habeas petition

under the AEDPA. Verners may not file a second or successive § 2255 motion

until he “move[s] 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

28 U.S.C. § 2255 (“A second or successive motion must be certified as provided

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

Verners filed the instant § 2255 motion in district court without first obtaining

permission from this court, the district court lacked jurisdiction to address the

merits. We therefore must vacate the district court’s order denying Verners’



      1
        In his appellate brief and application for a COA, Verners argues that his
counsel was ineffective for failing to present his three claims during his
resentencing. Because this ineffective assistance of counsel claim was not
adequately presented to the district court, we decline to consider it on appeal.
“[A]bsent extraordinary circumstances, [this court] will not consider arguments
raised for the first time on appeal. This is true whether an appellant is attempting
to raise a bald-faced new issue or a new theory that falls under the same general
category as a previous argument.” McDonald v. Kinder-Morgan, Inc., 287 F.3d
992, 999 (10th Cir.2002) (quotations and citation omitted). We note, however,
that the ineffective assistance claim relies on counsel’s failure to present
arguments that could have been raised in Verners’ first § 2255 motion.


                                           -4-
motion. See United States v. Avila-Avila    , 132 F.3d 1347, 1348-49 (10th Cir.

1997).

      We construe Verners’ request for a COA and appellate brief as an

application for authorization to file a second or successive § 2255 motion.      See

Pease v. Klinger , 115 F.3d 763, 764 (10th Cir. 1997). Our review of Verners’

implied application leads to the conclusion that he has failed to make the prima

facie showing necessary for filing a second or successive § 2255 motion.

Verners’ claims do not involve either newly discovered evidence or a previously

unavailable, new rule of constitutional law made retroactive to cases on collateral

review by the Supreme Court.      See 28 U.S.C. § 2255.

      Accordingly, the district court’s order dated February 12, 2002 denying

Verners’ unauthorized § 2255 motion is      vacated and his implied application for

leave to file a second or successive § 2255 motion is      denied . Verners is

reminded that this court’s denial of authorization to file a successive habeas

petition cannot be subject to a petition for rehearing or a petition for a writ of

certiorari. See 28 U.S.C. § 2244(b)(3)(E).

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge



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