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

                           FOR THE TENTH CIRCUIT                      September 4, 2015

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

             Plaintiff - Appellee,

v.                                                        No. 15-3045
                                                (D.C. No. 6:06-CR-10129-JTM-1)
JAMES E. BAKER,                                             (D. Kan.)

             Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, TYMKOVICH and MORITZ, Circuit Judges.


      James E. Baker seeks to appeal from the district court’s order treating his

motion for an evidentiary hearing and his motion for a suppression hearing as

unauthorized second or successive 28 U.S.C. § 2255 motions and dismissing them for

lack of jurisdiction. In order to appeal from the dismissal of an unauthorized § 2255

motion, Mr. Baker must obtain a certificate of appealability (COA). See United

States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). Because Mr. Baker did not

make an express request for a COA, we consider his notice of appeal to be such a

request. See Fed. R. App. P. 22(b)(2). For the following reasons, we deny a COA.

*
       This order is not binding precedent except under the doctrines of law of the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.
      I. Background

      In 2006, Mr. Baker was convicted of being a felon in possession of

ammunition in violation of 18 U.S.C. § 922(g)(1) and sentenced to 235 months’

imprisonment after the district court applied an armed-career-criminal enhancement.

We affirmed his conviction and sentence on direct appeal. United States v. Baker,

508 F.3d 1321, 1324 (10th Cir. 2007). In 2009, he filed his first 28 U.S.C. § 2255

motion, which the district court denied. We denied his request for a COA. United

States v. Baker, 371 F. App’x 987, 988 (10th Cir. 2010).

      Since the denial of his first § 2255 motion, Mr. Baker has attempted to bring

successive collateral challenges to his sentence on a number of occasions. In 2010

and 2011, Mr. Baker moved for permission to file successive § 2255 motions. Both

requests were denied. After his second request for authorization was denied,

Mr. Baker filed a motion in federal district court to reconsider and vacate his

sentence enhancement. The district court construed the motion as an unauthorized

second or successive § 2255 motion and dismissed it for lack of jurisdiction.

Mr. Baker appealed the dismissal, and we denied his request for a COA. United

States v. Baker, 484 F. App’x 258, 258-59 (10th Cir. 2012).

      In 2012, Mr. Baker sought relief pursuant to Fed. R. Civ. P. 60(d)(3). The

district court concluded that the motion sought to raise a substantive basis to overturn

his conviction—which is properly brought in a § 2255 motion—and that it did not

raise a defect in the integrity of the proceedings that could be considered pursuant to


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Rule 60. The district court therefore dismissed the filing for lack of jurisdiction as an

unauthorized second or successive § 2255 motion. We denied Mr. Baker’s request

for a COA. United States v. Baker, 718 F.3d 1204, 1206 (10th Cir. 2013). Mr. Baker

twice more sought permission to file a second or successive § 2255 motion and we

denied both of those requests.

      In December 2014, Mr. Baker filed a motion for a suppression hearing. In

January 2015, he filed a motion for an evidentiary hearing. The district court

concluded that both of these motions constituted attacks on Mr. Baker’s conviction or

attempts to revive his previously-denied § 2255 motion and should therefore be

treated as unauthorized second or successive § 2255 motions. The district court

dismissed both motions for lack of jurisdiction.

      II. Discussion

      Mr. Baker argues that the district court erred in construing his motions as

successive § 2255 motions and dismissing them for lack of jurisdiction. To obtain a

COA to challenge the district court’s procedural ruling, Mr. Baker must 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).

      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


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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. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

       “A prisoner’s post-judgment motion is treated like a second-or-successive

§ 2255 motion . . . if it asserts or reasserts claims of error in the prisoner’s

conviction.” Baker, 718 F.3d at 1206. “[W]e look at the relief sought, rather than a

pleading’s title or its form, to determine whether it is a second-or-successive

collateral attack on a defendant’s conviction.” Id. at 1208. “[T]o allow a petitioner

to avoid the bar against successive § 2255 petitions by simply styling a petition under

a different name would severely erode the procedural restraints imposed under

28 U.S.C. §§ 2244(b)(3) and 2255.” Baker, 718 F.3d at 1208.

       Although Mr. Baker styled his motion as one for a suppression hearing, he

argued that the seizure of the ammunition that led to his conviction violated his

Fourth Amendment rights and that his counsel was ineffective for failing to file a

motion to suppress that evidence. Through the motion, Mr. Baker sought to assert or

reassert claims that collaterally attack the merits of his underlying conviction. Under

these circumstances, reasonable jurists could not debate that the district court was

correct to treat the motion to suppress as a second or successive § 2255 motion and

dismiss it for lack of jurisdiction.

       In his motion for an evidentiary hearing, Mr. Baker again asserted that the

evidence of the ammunition should not have been admitted against him and further


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asserted that the government lacked standing to argue against the allegations he made

in his original § 2255 motion. Through his motion for an evidentiary hearing,

Mr. Baker sought to reopen his prior § 2255 proceedings for the purpose of attacking

the district court’s disposition of that motion on the merits. As he explains in his

appellate brief, he “sought an evidentiary hearing to determine if the District Court

had subject matter jurisdiction to rule on the merits of [the government’s] response

motion . . . [because] he only now . . . understood the significance of facts known to

him at the time of his earlier petition under § 2255.” Aplt. Br. at 18. Reasonable

jurists could not debate that the district court was correct to treat the motion for an

evidentiary hearing as a second or successive § 2255 motion and dismiss it for lack

of jurisdiction.

       Accordingly, we deny a COA and dismiss this matter.


                                             Entered for the Court



                                             ELISABETH A. SHUMAKER, Clerk




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