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

                            FOR THE TENTH CIRCUIT                            January 3, 2019
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-1316
                                                   (D.C. Nos. 1:18-CV-00054-CMA &
 RAFAEL RAMOS,                                          1:14-CR-00337-CMA-1)
                                                                (D. Colo.)
       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before PHILLIPS, McHUGH, and EID, Circuit Judges.
                   _________________________________

      Rafael Ramos, a federal prisoner proceeding pro se, filed a 28 U.S.C. § 2255

motion to vacate, set aside or correct his sentence. The district court determined it

lacked jurisdiction to consider the § 2255 motion because it was an unauthorized

second or successive § 2255 motion. Mr. Ramos filed a notice of appeal from the

district court’s decision. The district court granted a certificate of appealability on

the question of whether Mr. Ramos’s first § 2255 motion, which he voluntarily



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
withdrew, should count for determining whether a subsequent motion should be

considered second or successive. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm.

      I. Background

      Mr. Ramos pleaded guilty to possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1), after he provided four firearms to another

individual for sale to an undercover officer. The district court sentenced him to

84 months’ imprisonment, which was the bottom of the proposed advisory

Sentencing Guidelines range of 84 to 105 months. He did not appeal.

      In June 2016, Mr. Ramos filed a pro se § 2255 motion. He asserted he was

entitled to relief based on the Supreme Court’s decision in Johnson v. United States,

135 S. Ct. 2551 (2015), because he was sentenced based on the unconstitutional

residual clause in the Armed Career Criminal Act (ACCA). The government argued

in its response that Johnson did not apply to Mr. Ramos because he was not

sentenced under the ACCA, nor did he receive a sentence enhancement under the

Sentencing Guidelines that was based on a conviction for a prior crime of violence.1

      A few months later, Mr. Ramos filed a motion to withdraw his § 2255 motion.

In the motion, he stated that “[u]pon further consideration and examination” of his

§ 2255 motion, “it has become clear to the defendant that the Johnson case does not


      1
        The presentence investigation report recommended enhancing Mr. Ramos’s
sentence because (1) the offense involved three to seven firearms, see U.S.
Sentencing Guidelines Manual § 2K2.1(b)(1)(A) (U.S. Sentencing Comm’n 2014);
and (2) one of the firearms had an obliterated serial number, see id. § 2K2.1(b)(4)(B).
                                           2
apply to his case . . . or conviction.” R. at 89. He further stated that “with the help

of an interpreter[,] [he] read the Government’s Response . . . and has become

convinced that in fact the Johnson decision does not apply to his case.” Id. at 90. He

also indicated that he had been given “advice by an attorney to withdraw his motion

under Johnson in order to preserve that right for a better issue in the future.” Id. at

89. The district court granted the motion to withdraw.

      In January 2018, Mr. Ramos filed another § 2255 motion. He argued he

received ineffective assistance of counsel because his attorney misled him into

believing he was going to receive a sentence of 46 to 57 months when Mr. Ramos

was accepting the plea agreement. In response, the government asserted that the

motion should be dismissed for lack of jurisdiction because it was an unauthorized

second § 2255 motion. The government contended that Mr. Ramos’s “previous

§ 2255 motion, which he withdrew after realizing, and affirmatively acknowledging,

that the motion was meritless[,] . . . counts for “purposes of the ‘second or

successive’ analysis.” Id. at 103.

      The district court agreed with the government that it lacked jurisdiction over

Mr. Ramos’s § 2255 motion because it was an unauthorized second or successive

§ 2255 motion. Mr. Ramos now appeals that decision.

      II. Discussion

      Under § 2255, a prisoner sentenced by a federal court may move to have that

sentence vacated, set aside or corrected. 28 U.S.C. § 2255(a). A prisoner may not,

however, file a second or successive § 2255 motion unless he first obtains an order

                                            3
from the circuit court authorizing the district court to consider the motion. 28 U.S.C.

§ 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district court lacks

jurisdiction to address the merits of a second or successive § 2255 motion. See In re

Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). “[T]o avoid having claims

barred as successive, federal prisoners seeking relief under § 2255 generally must

marshal all of their claims into one collateral attack on their conviction and

sentence.” United States v. Kelly, 235 F.3d 1238, 1241 (10th Cir. 2000). But not all

first-in-time § 2255 motions will lead to a second-in-time motion being treated as a

second or successive § 2255 motion. See Haro-Arteaga v. United States, 199 F.3d

1195, 1196 (10th Cir. 1999) (identifying types of cases where the first § 2255 motion

did not count as a first motion for purposes of determining whether a later motion

was second or successive).

      Mr. Ramos contends that the district court erred in treating his second-in-time

§ 2255 motion as an unauthorized second or successive motion because: (1) an

inmate paralegal misled him into filing his first § 2255 motion with a single claim

that had no relevance to his case; (2) the district court erred in failing to warn him

about the consequences of withdrawing his initial § 2255 motion; and (3) there is a

circuit split as to whether a motion that is voluntarily withdrawn should count as an

initial § 2255 motion. We are not persuaded by Mr. Ramos’s arguments; instead, we

agree with the district court that Mr. Ramos’s voluntarily-withdrawn § 2255 motion

should count as a first motion for purposes of the second or successive analysis. The



                                            4
district court therefore properly determined it lacked jurisdiction to consider

Mr. Ramos’s unauthorized second or successive § 2255 motion.

      We will address Mr. Ramos’s issues in reverse order. Contrary to his

assertion, there is no circuit split on the issue of whether a motion that is voluntarily

withdrawn should count as an initial § 2255 motion for purposes of the second or

successive analysis. All of the courts to consider the issue have looked at the

circumstances of each individual case. In doing so, courts have sometimes decided

that a voluntarily-withdrawn § 2255 motion counts when determining whether a later

motion is second or successive, and courts have sometimes decided that a

voluntarily-withdrawn § 2255 motion does not count for second or successive

purposes. But the decisions are based on the facts of the case, not any conflicting

legal analysis. For example, in a trio of cases in the Seventh Circuit, that court twice

concluded that the circumstances supported counting the voluntarily-withdrawn

§ 2255 motion as a first motion for second or successive purposes, see Potts v.

United States, 210 F.3d 770, 770-71 (7th Cir. 2000), and Felder v. McVicar, 113 F.3d

696, 698 (7th Cir. 1997), but in between those two cases, the court determined that

the circumstances surrounding the voluntarily-withdrawn § 2255 motion did not

support counting it as a first motion for second or successive purposes, see Garrett v.

United States, 178 F.3d 940, 942-43 (7th Cir. 1999).

      One of the factors courts have found determinative in considering how to treat

a voluntarily-withdrawn § 2255 motion is whether the moving party conceded the

motion lacked merit. See, e.g., Provenzale v. United States, 388 F. App’x 285, 287

                                            5
(4th Cir. 2010) (finding that petitioner’s “original § 2255 motion does not bar the

filing of another § 2255 motion without pre-filing authorization” because he “did not

concede upon withdrawal of his first § 2255 motion that the motion lacked merit”);

Thai v. United States, 391 F.3d 491, 496 (2d Cir. 2004) (“The circumstances of the

instant case do not provide a clear indication that Thai regarded his initial petition as

meritless when he moved to withdraw it. Accordingly, we hold that the most recent

petition is not a second or successive petition[.]”); Garrett, 178 F.3d at 942, 943

(holding that current § 2255 motion was not a successive motion because petitioner

had “never conceded defeat” when he moved to withdraw his earlier motions and

there was “no indication that withdrawal was to obtain a tactical advantage in the

face of impending defeat”); Felder, 113 F.3d at 698 (finding that petitioner’s

concession that he could not meet his burden of proof at an evidentiary hearing was

“an admission of defeat” and concluding that “a petitioner for habeas corpus cannot

be permitted to thwart the limitations on the filing of second or successive motions

by withdrawing his first petition as soon as it becomes evident that the district court

is going to dismiss it on the merits”). The cases from the circuits noted above are

consistent with our approach to the issue.

      In Haro-Arteaga, the petitioner had filed two prior § 2255 motions, which he

then voluntarily withdrew. 199 F.3d at 1195. At the time he withdrew the motions,

the petitioner had not conceded any claim nor had the district court engaged in

substantive review; we therefore concluded the petitioner’s subsequent motion should

not be treated as a second or successive motion. Id. at 1197. In contrast, Mr. Ramos

                                             6
did concede his first § 2255 motion lacked merit when he moved to withdraw it. In

his first § 2255 motion, he brought a single claim, arguing he was entitled to

sentencing relief based on Johnson. But in his motion to withdraw his first § 2255

motion, he admitted that Johnson “does not apply to his case . . . or conviction.”

R. at 89. Given these circumstances, the district court properly determined that

Mr. Ramos’s voluntarily-withdrawn § 2255 motion should count for purposes of the

second or successive analysis.

       Mr. Ramos also argues that the district court erred in failing to warn him about

the consequences of withdrawing his initial pro se § 2255 motion, relying on the

Supreme Court’s decision in Castro v. United States, 540 U.S. 375 (2003). But

Castro does not apply here because it relates to situations where a pro se prisoner

files a motion that he does not label as a § 2255 motion, but the district court

recharacterizes it as a § 2255 motion. The Supreme Court held that a district court:

       cannot so recharacterize a pro se litigant’s motion as the litigant’s first
       § 2255 motion unless the court informs the litigant of its intent to
       recharacterize, warns the litigant that the recharacterization will subject
       subsequent § 2255 motions to the law’s ‘second or successive’ restrictions,
       and provides the litigant with an opportunity to withdraw, or to amend, the
       filing.
540 U.S. at 377. Here, Mr. Ramos’s initial motion was labeled a § 2255 motion; there

was no recharacterization. Castro does not obligate district courts to warn pro se litigants

about the potential second or successive consequences of withdrawing an initial § 2255

motion.




                                             7
      Finally, Mr. Ramos asserts he was misled by a fellow inmate into believing he

had a viable claim under Johnson. He contends that if he “had not been totally

dependent on the legal advice of his fellow ‘inmate paralegal,’ he would not have

submitted such a ridiculous issue which had absolutely no bearing on his case but

would have brought the issues discussed herein.” Aplt. Br. at 7. But Mr. Ramos

cites to no legal authority—and we are aware of none—that indicates this type of

information is relevant or permitted to be considered when determining whether

Mr. Ramos’s initial § 2255 motion should count for purposes of the second or

successive analysis.

      III. Conclusion

      For the foregoing reasons, we affirm the district court’s determination that it

lacked jurisdiction to consider the merits of Mr. Ramos’s § 2255 motion because it

was an unauthorized second or successive § 2255 motion. We grant Mr. Ramos’s

motion to proceed on appeal without prepayment of costs or fees.


                                           Entered for the Court
                                           Per Curiam




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