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

                            FOR THE TENTH CIRCUIT                         June 19, 2013

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

             Plaintiff−Appellee,

v.                                                         No. 13-8031
                                                  (D.C. Nos. 1:13-CV-00017-NDF
HERIBERTO GARCIA−RODRIGUEZ,                         & 2:03-CR-00061-WFD-1)
                                                             (D. Wyo.)
             Defendant−Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, LUCERO, and MATHESON, Circuit Judges.


      Heriberto Garcia-Rodriguez, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s dismissal of his

second 28 U.S.C. § 2255 motion for lack of jurisdiction. We deny a COA and

dismiss the matter.

      Mr. Garcia-Rodriguez was convicted in 2004 of possession with intent to

distribute more than 500 grams of methamphetamine. He was sentenced to life

imprisonment because he had two prior felony drug convictions. We upheld his



*
       This order is not binding precedent except under the doctrines of law of the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.
conviction and sentence on appeal. See United States v. Garcia-Rodriguez,

127 F. App’x 440, 442 (10th Cir. 2005).

      In 2007, Mr. Garcia-Rodriguez filed a Notice of Motion and Motion Seeking

Permission to File a Late 28 U.S.C. § 2255 Motion. The district court considered this

request as a § 2255 motion and considered the arguments for why the motion should

not be treated as untimely. The court ultimately concluded that

Mr. Garcia-Rodriguez had failed to provide sufficient justification for his untimely

filing and denied the § 2255 motion. Mr. Garcia-Rodriguez sought to appeal this

decision, and we denied his request for a COA. See United States v.

Garcia-Rodriguez, 275 F. App’x 782, 782-83 (10th Cir. 2008).1

      In January 2013, Mr. Garcia-Rodriguez filed a second § 2255 motion. The

district court determined that this motion was an unauthorized second or successive

motion and dismissed it for lack of jurisdiction. Mr. Garcia-Rodriguez now seeks a

COA to appeal that dismissal.

      To obtain a COA, Mr. Garcia-Rodriguez 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
1
       In our COA order, we recognized that Mr. Garcia-Rodriguez had not actually
filed a § 2255 motion in the district court, but the court had recharacterized the
motion as a § 2255 motion. Garcia-Rodriguez, 275 F. App’x at 782 n.1. Although
we noted that recharacterizing a motion as a first § 2255 motion requires certain
procedural steps that the district court had not taken, we concluded that
recharacterizing the motion “[i]n the unusual circumstances of this case” was
“warranted.” Id.


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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). Because both of these elements must be shown, the court may address

them in whatever sequence is convenient. See id. at 485.

      The procedural ruling is dispositive in this matter. A prisoner may not file a

second or successive § 2255 motion unless he first obtains an order from the circuit

court authorizing the district court to consider the motion. See 28 U.S.C.

§§ 2244(b)(3)(A), 2255(h). In the absence of 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).

      Mr. Garcia-Rodriguez’s new § 2255 motion asserts that his counsel was

ineffective in light of the holdings in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and

Missouri v. Frye, 132 S. Ct. 1399 (2012). He argues that if his counsel had been

effective during the plea negotiation process, he would have received a much shorter

sentence. He also argues that this new § 2255 should not count as a second or

successive motion because his first § 2255 motion was not decided on the merits.

      “Generally, a § 2255 petition is ‘second or successive’ if a prior § 2255

petition, raising claims regarding the same conviction or sentence, has been decided

on the merits.” Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998).

Mr. Garcia-Rodriguez’s first § 2255 motion brought claims attacking the same

conviction and sentence that he now seeks to challenge in his second § 2255 motion.

But he contends that the district court did not decide his first motion on the merits


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because the court dismissed it as untimely. The dismissal of a first habeas petition as

time-barred, however, is “a decision on the merits, and any later habeas petition

challenging the same conviction is second or successive and is subject to the AEDPA

requirements.” In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam);

see also Villanueva v. United States, 346 F.3d 55, 61 (2d Cir. 2003) (“[A] habeas or

§ 2255 petition that is properly dismissed as time-barred under ADEPA constitutes an

adjudication on the merits for successive purposes.”). The district court therefore

properly characterized Mr. Garcia-Rodriguez’s new motion as a second or successive

§ 2255 motion.

       The district court further determined that it would not be in the interest of

justice to transfer the motion to this court because Mr. Garcia-Rodriguez’s new

claims were not based on newly discovered evidence or a new rule of constitutional

law. See Cline, 531 F.3d at 1251-53; 28 U.S.C. § 2255(h). Although

Mr. Garcia-Rodriguez seeks to rely on Lafler and Cooper to establish that his claims

are not successive, we recently joined six other circuits in holding that these

decisions do not establish a new rule of constitutional law. See In re Graham,

714 F.3d 1181, 1182-83 (10th Cir. 2013) (per curiam). The district court therefore

properly exercised its discretion not to transfer the motion and to dismiss it for lack

of jurisdiction instead.

       Reasonable jurists could not debate that the district court was correct to treat

Mr. Garcia-Rodriguez’s new § 2255 motion as an unauthorized second or successive


                                          -4-
§ 2255 motion and dismiss it for lack of jurisdiction. Accordingly, we deny a COA

and dismiss this matter. We grant Mr. Garcia-Rodriguez’s motion for leave to

proceed on appeal without prepayment of costs or fees.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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