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

                               FOR THE TENTH CIRCUIT                     April 7, 2016

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                        No. 16-3001
                                                (D.C. No. 6:06-CR-10129-JTM-1)
JAMES E. BAKER,                                             (D. Kan.)

       Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BACHARACH, O’BRIEN, and MORITZ, Circuit Judges.


      Defendant-Appellant James E. Baker seeks a certificate of appealability

(COA) to challenge the district court’s dismissal of his motion to amend his motion

under 28 U.S.C. § 2255 and its denial of his motion for reconsideration. See

28 U.S.C. §§ 2244(b)(3), 2255(h); In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008)

(per curiam). We deny the request for a COA.

      Baker was convicted in 2006 of being a felon in possession of ammunition.

He was sentenced under the Armed Career Criminal Act (ACCA) based on three

prior felony burglary convictions. Following an unsuccessful direct appeal, Baker

*
       This order is not binding precedent except under the doctrines of law of the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.
filed his first § 2255 motion in May 2009. The district court denied relief and this

court denied a COA, United States v. Baker, 371 F. App’x 987, 988 (10th Cir. 2010).

Since then, Baker has filed a host of post-conviction motions that the district court

has construed as unauthorized second or successive § 2255 motions and dismissed.

Each time Baker has sought to appeal a dismissal, we have denied him a COA.

Baker also has filed four motions seeking authorization from this court to file a

second or successive § 2255 motion. We have denied all of his requests.

         Undeterred, Baker filed a motion in October 2015 seeking to amend his § 2255

motion based on the Supreme Court’s recent decision in Johnson v. United States,

135 S. Ct. 2551, 2557 (2015), holding that the residual clause of the ACCA is

unconstitutionally vague. Baker sought to add a claim that his sentence was

improperly enhanced under the ACCA because none of his prior convictions would

qualify as a violent felony in the absence of the residual clause. He argued that his

amendment could relate back to his original § 2255 motion under Fed. R. Civ. P.

15(c).

         Not surprisingly, the district court construed the motion to amend as yet

another unauthorized second or successive § 2255 motion and dismissed it for lack of

jurisdiction. Baker then filed a motion for reconsideration, which the district court

noted was also second or successive and denied. And so we come to the current

proceeding, in which Baker challenges the district court’s dismissal of his motion to

amend and the denial of his motion for reconsideration.


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       To appeal, Baker must first obtain a COA under 28 U.S.C. § 2253(c)(1)(B).

See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). Because the

district court’s dismissal for lack of jurisdiction rests on procedural grounds, Baker

must show both “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 debatable whether the district court was correct in its procedural

ruling,” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       Baker argues that the district court erred in treating his motion to amend as a

second or successive § 2255 motion for two reasons. First, he argues that the

Supreme Court’s decision in Johnson constituted a new factual predicate for the

presentation of what he contends was a previously unripe claim. He likens the

Supreme Court’s “vacatur” of the ACCA’s residual clause to the vacatur of a prior

conviction and argues that, under the rationale of In re Weathersby, 717 F.3d 1108,

1110-11 (10th Cir. 2013) (per curiam), a § 2255 motion filed after a vacatur is not

second or successive. Baker’s argument is devoid of any merit. Striking down a

statute is not akin to vacating a prior conviction. One alters the governing law, the

other the operative facts. Baker could have challenged the application of the ACCA

to his prior convictions when he filed his first § 2255 motion; the ripeness of that

claim did not depend upon Johnson.

       Second, Baker argues that his proposed amendment should not be treated as a

second or successive claim because it relates back to his first § 2255 motion under


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Rule 15(c). We have previously held that a post-judgment Rule 15 motion seeking to

amend a § 2255 motion is subject to the restrictions on second or successive filings.

See United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006). Accordingly,

absent prior circuit authorization, the district court properly concluded it had no

jurisdiction to rule on the motion to amend and dismissed it. See In re Cline,

531 F.3d at 1252.

       The district court also correctly acknowledged that Baker’s motion for

reconsideration was itself an unauthorized second or successive § 2255 motion. The

motion did not raise a defect in the integrity of the § 2255 proceedings; it sought

instead to raise a new claim for relief. “It is the relief sought, not [the] pleading’s

title, that determines whether the pleading is a § 2255 motion.” Nelson, 465 F.3d

at 1149. Because it was an unauthorized second or successive motion the district

court had no jurisdiction to entertain it.

       We conclude that no jurist of reason could find it debatable whether Baker’s

motion to amend and his motion to reconsider were unauthorized second or

successive § 2255 motions over which the district court had no jurisdiction. We

therefore deny Baker’s request for a COA. We note, however, that the district court

denied, rather than dismissed, Baker’s motion to reconsider. We therefore remand

with instructions to the district court to dismiss the motion to reconsider for lack of




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jurisdiction. We grant Baker’s motion to proceed on appeal without the prepayment

of costs or fees.


                                         Entered for the Court



                                         ELISABETH A. SHUMAKER, Clerk




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