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

                              FOR THE TENTH CIRCUIT                    January 27, 2016

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

      Plaintiff − Appellee,

v.                                                         No. 15-8091
                                                (D.C. Nos. 2:13-CV-00014-ABJ &
LEONARD G. PAGE, JR.,                                2:08-CR-00006-ABJ-1)
                                                            (D. Wyo.)
      Defendant − Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, HARTZ and BACHARACH, Circuit Judges.


      Leonard G. Page, Jr., proceeding pro se,1 seeks a certificate of appealability

(COA) to challenge the dismissal of his unauthorized second or successive motion to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (requiring a COA to appeal from a “final order in a proceeding under

section 2255”). Mr. Page also appeals the district court’s denial of his motion for

counsel, and he renews his request for appointment of counsel in this court. For 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       This order is not binding precedent except under the doctrines of law of the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.
1
      We liberally construe Mr. Page’s pro se materials but do not act as his
advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
reasons that follow, we deny a COA with respect to the district court’s dismissal and

affirm the district court’s denial of counsel.2 We also deny the renewed motion for

counsel and dismiss this appeal.

                                             I.

       Mr. Page is serving a life sentence after a jury convicted him of conspiracy to

possess with intent to distribute and conspiracy to distribute fentanyl, resulting in

death. 21 U.S.C. §§ 846 and 841(a)(1) and (b). On direct appeal, Mr. Page claimed

there was insufficient evidence to support his conviction, but we rejected that

argument and affirmed his conviction, United States v. Page, 317 F. App’x 806, 813

(10th Cir. 2009) (unpublished). Mr. Page subsequently filed a § 2255 motion,

insisting there was insufficient evidence to support his conviction and also claiming

his counsel rendered ineffective assistance in failing to interview his sister and elicit

her testimony. Additionally, Mr. Page claimed his sentence was void for vagueness.

The district court denied those claims and also denied a COA. Mr. Page then filed a

motion to alter or amend the judgment under Fed. R. Civ. P. 59(e), but the district

court denied that motion as well. Mr. Page applied to this court for a COA, claiming

his counsel was ineffective in failing to call his sister to testify, but we denied a

COA, ruling “[i]t is unlikely that [his sister’s] testimony would have been credible.”

United States v. Page, 480 F. App’x 902, 907 (10th Cir. 2012) (unpublished).


2
      Mr. Page need not obtain a COA to appeal the district court’s denial of the
motion to appoint counsel. See Harbison v. Bell, 556 U.S. 180, 183 (2009).


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      Returning to the district court, Mr. Page filed in January 2013 what he now

acknowledges was a second or successive § 2255 motion. He claimed ineffective

assistance of counsel and actual innocence based on newly discovered evidence:

statements from his sister and brother-in-law. He also requested that the court

appoint counsel for him. Meanwhile, Mr. Page filed in this court a motion for

authorization to file a second or successive § 2255 motion, referencing potential

testimony from his sister and brother-in-law, but we denied the motion because he

failed to explain how this asserted evidence was newly discovered and established his

innocence. See In re Page, No. 13-8050 (10th Cir. June 17, 2013). Thereafter, the

district court took up Mr. Page’s still-pending second or successive § 2255 motion

and recognized it lacked jurisdiction because the motion was unauthorized; the court

thus analyzed whether it would be in the interests of justice to transfer the motion to

this court and ultimately concluded it would not. See In re Cline, 531 F.3d 1249,

1251 (10th Cir. 2008) (per curiam) (explaining that absent jurisdiction, a district

court has discretion to transfer unauthorized § 2255 motions to this court if it is in the

interest of justice to do so). Consequently, the district court dismissed the

proceeding and denied a COA. Mr. Page now seeks a COA to appeal the district

court’s dismissal. See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008)

(“[T]he district court’s dismissal of an unauthorized § 2255 motion is a final order in

a proceeding under section 2255 such that § 2253 requires petitioner to obtain a COA

before he or she may appeal.” (internal quotation marks omitted)).


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                                             II.

       A COA is a jurisdiction prerequisite to appeal. See Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). A COA will issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

This requires the applicant to show “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).

       Here, no reasonable jurist could debate the district court’s dismissal of

Mr. Page’s unauthorized second or successive § 2255 motion. “Before a federal

prisoner may file a second or successive motion under § 2255, the prisoner must first

obtain an order from the appropriate court of appeals authorizing the district court to

consider the motion.” Cline, 531 F.3d at 1250 (citing 28 U.S.C. §§ 2244(b)(3)(A),

2255(h)). When presented with an unauthorized second or successive § 2255 claim,

a “district court may transfer the matter to this court if it determines it is in the

interest of justice to do so under [28 U.S.C.] § 1631, or it may dismiss the motion or

petition for lack of jurisdiction.” Id. at 1252.

       Mr. Page does not dispute that he filed a second or successive § 2255 motion.

See COA App. at 1 (“This motion was a second motion following [the] initial § 2255




                                            -4-
filed previously.”).3 Nor does Mr. Page contend the district court should have

transferred the motion to this court. Instead, he contends the district court violated

his rights by dismissing the motion without appointing counsel. But absent

authorization from this court to consider the motion as required by § 2255(h), which

Mr. Page apparently understood given his previous request for authorization, the

district court was unquestionably correct in dismissing Mr. Page’s unauthorized

second or successive § 2255 motion.

      Accordingly, we deny a COA and dismiss this appeal. Although Mr. Page

asserts he should have been appointed counsel because he was unable to competently

present his claims, given the patently successive nature of his § 2255 motion, the

district court did not abuse its discretion in denying the motion for appointment of

counsel. See 28 U.S.C. § 2255(g); Engberg v. Wyoming, 265 F.3d 1109, 1122

(10th Cir. 2001) (weighing discretionary factors). For the same reason, we deny

Mr. Page’s renewed motion for appointment of counsel on appeal. Finally,

Mr. Page’s motion to proceed without prepayment of costs and fees is denied because

he failed to submit a certified statement of his inmate trust fund account as required


3
      Although Mr. Page acknowledges the successive nature of his § 2255 motion
while maintaining his actual innocence, he does not contend that § 2255 provides an
“inadequate or ineffective” remedy to challenge his conviction. See 28 U.S.C.
§ 2255(e); Brace v. United States, 634 F.3d 1167, 1169-70 (10th Cir. 2011). Instead,
he nominally asserts he is “actually innocent” in challenging the sufficiency of the
evidence underlying his conviction. Thus, Mr. Page’s arguments do not make a
colorable claim under 28 U.S.C. § 2241 pursuant to the savings clause of § 2255(e).
See Cleaver v. Maye, 773 F.3d 230, 232 (10th Cir. 2014).


                                          -5-
by 28 U.S.C. § 1915(a)(2). See Green v. Nottingham, 90 F.3d 415, 417 (10th Cir.

1996) (recognizing that the court cannot grant leave to proceed without prepayment

of fees and costs where inmate fails to submit a certified inmate trust fund account

statement).



                                           Entered for the Court



                                           ELISABETH A. SHUMAKER, Clerk




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