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

                             FOR THE TENTH CIRCUIT                               July 31, 2017
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-8038
                                                   (D.C. Nos. 1:13-CR-00170-ABJ-1)
JOHN SCOTT PINKERTON,                                          (D. Wyo.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, HARTZ, and O’BRIEN, Circuit Judges.
                  _________________________________

       John Scott Pinkerton pled guilty to attempted online enticement of a minor in

violation of 18 U.S.C. § 2422(b), and, consistent with a plea agreement executed pursuant

to Fed. R. Crim. P. 11(c)(1)(C), received the statutory minimum sentence of ten years’

imprisonment. After a prior motion for relief under 28 U.S.C. § 2255 was dismissed as

untimely, he filed a pleading entitled “Constitutional Challenge to Statute of 18 U.S.C.

§ 2422(b),” claiming that the statute underlying his conviction is unconstitutional on its

face and as applied to him. R. Vol. 2 at 11-12. The district court concluded the pleading

was in substance a second or successive § 2255 motion and dismissed it for lack of the

circuit authorization required under 28 U.S.C. §§ 2244(b)(3) and 2255(h). Because the

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
correctness of that disposition is not debatable by reasonable jurists, we deny a COA and

dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (stating standard

for COA).

       In his appellate brief, Mr. Pinkerton continues to argue the merits of his motion

but does not explain how the district court erred in characterizing it as a second or

successive § 2255 motion. A challenge to the validity of a federal conviction is properly

brought under § 2255, see, e.g., Stanko v. Davis, 617 F.3d 1262, 1267 (10th Cir. 2010),

and Mr. Pinkerton’s claim that the statute underlying his conviction is unconstitutional

plainly entails such a challenge. Thus, because the dismissal of his first § 2255 motion as

time-barred constituted a decision on the merits rendering the instant motion second or

successive, see In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011), the district court

properly dismissed the latter for lack of jurisdiction after concluding, appropriately, that a

transfer to this court to consider authorization under the standards in § 2255(h) would be

futile, see In re Cline, 531 F.3d 1249, 1250-52 (10th Cir. 2008) (per curiam). In the latter

regard, we note Mr. Pinkerton’s motion did not cite either newly discovered evidence of

innocence, see 28 U.S.C. § 2255(h)(1), or a new rule of constitutional law made

retroactive to cases on collateral review by the Supreme Court, see id. § 2255(h)(2).

       Mr. Pinkerton also briefly asserted in his motion that the “only sexual activity that

the federal government can actually prosecute . . . [under] § 2241 et seq, is acts

committed while in federal territory.” R. Vol. 2 at 15. On appeal he adds he “has never

been provided proof of subject-matter jurisdiction . . . as mandated under . . . 40 USC

§ 3112(b) [relating to acquisition of federal jurisdiction over land ceded by States].”

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Aplt. Combined Opening Br. and App. for COA at 4 (also referring in this regard to

federal legislative authority granted by U.S. Const. art. I, § 8, cl. 17). This objection falls

squarely within the scope of § 2255, which encompasses claims “that the court was

without jurisdiction to impose . . . sentence” on the defendant. 28 U.S.C. § 2255(a).

Because it could have been brought in Mr. Pinkerton’s first § 2255 motion, it was subject

to dismissal for the same reason as his challenge to the constitutionality of § 2422.

       On appeal, Mr. Pinkerton complains of his allegedly invalid commitment to the

Federal Bureau of Prisons pursuant to statutes that have “not been properly enacted under

Public Law, nor placed in the Statutes at Large.” Aplt. Combined Opening Br. and App.

for COA at 4. This claim was not raised in the pleading dismissed by the district court

and thus has nothing to do with whether that pleading should have been treated as a

second or successive § 2255 motion.

        Mr. Pinkerton asks this court, as he did the district court, to certify his challenge

regarding § 2422 to the Attorney General under 28 U.S.C. § 2403(a). Indeed, he insists it

was error for the district court not to do so. But § 2403(a)—and Fed. R. App. P. 44(a)

and Fed. R. Civ. P. 5.1, which also address certification of constitutional challenges to

federal statutes—concern notice to the United States of such challenges when the

government is not a party to the action, so that the United States may intervene to defend

the statute under attack. Here, the United States is a party.

       The request for a COA is denied, the appeal is dismissed, and the motion for

certification is denied. Because Mr. Pinkerton has failed to advance a non-frivolous

argument in support of this appeal, we deny his motion to proceed in forma pauperis and

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“remind him of his obligation to pay the filing fee even though his request for a COA has

been denied.” Clark v. Oklahoma, 468 F.3d 711, 715 (10th Cir. 2006).


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




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