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

                             FOR THE TENTH CIRCUIT                                April 27, 2018
                         _________________________________
                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 18-8008
                                                     (D.C. No. 1:13-CR-00170-ABJ-1)
JOHN SCOTT PINKERTON,                                            (D. Wyo.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, HARTZ, and MORITZ, Circuit Judges.
                  _________________________________

       John Scott Pinkerton seeks a certificate of appealability (COA) to appeal from the

district court’s dismissal of his post-conviction motion as an unauthorized second or

successive 28 U.S.C. § 2255 motion. We deny a COA and dismiss this matter. But

although the district court correctly recognized that it lacked jurisdiction to adjudicate the

motion, it entered a dismissal with prejudice rather than without prejudice.

See Abernathy v. Wandes, 713 F.3d 538, 558 (10th Cir. 2013) (holding that a dismissal

for lack of subject matter jurisdiction is a dismissal without prejudice). We therefore




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
vacate the judgment and remand with instructions for the district court to enter a

judgment reflecting that the dismissal was without prejudice.

       Mr. Pinkerton pleaded guilty to one count of attempted online enticement of a

minor in violation of 18 U.S.C. § 2422(b). He did not file a direct appeal, but did file

unsuccessful post-judgment motions for relief in the nature of a writ of coram nobis and

for relief under § 2255. This matter concerns a November 2017 “Petition Pursuant to

Federal Rule of Civ P 60(b)(4), 60(d)(3) and 28 U.S.C. §1651 for Emergency Relief from

Void Judgment” seeking to declare the judgment void ab initio for lack of jurisdiction,

violations of due process, and fraud on the court. The district court determined the filing

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

jurisdiction. See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251-52 (10th Cir.

2008) (per curiam).

       To appeal from the district court’s decision, Mr. Pinkerton must obtain a COA.

See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). That requires him 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). Before this court, Mr. Pinkerton focuses on the

merits of his underlying claims. We do not consider the merits, however, because no

reasonable jurist could debate the district court’s procedural decision to dismiss the

motion for lack of jurisdiction.



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       Because Mr. Pinkerton has already pursued relief under § 2255, he must obtain

this court’s authorization before filing another § 2255 motion in the district court.

See 28 U.S.C. § 2255(h). “A § 2255 motion is one claiming the right to be released upon

the ground that the sentence was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to impose such sentence, . . . or

[the sentence] is otherwise subject to collateral attack.” United States v. Nelson, 465 F.3d

1145, 1148 (10th Cir. 2006) (internal quotation marks omitted). Mr. Pinkerton’s claims

attacking the court’s jurisdiction and alleging due process violations and fraud on the

sentencing court fall squarely within § 2255. And Mr. Pinkerton cannot escape the

requirements of § 2255(h) by titling his motion as one under Fed. R. Civ. P. 60(b)(4) and

60(d)(3). “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; see also United States v. Baker,

718 F.3d 1204, 1208 (10th Cir. 2013) (holding that a motion alleging fraud on the court

in the underlying criminal proceeding, brought in part under Rule 60(d)(3), was subject to

the authorization requirements of § 2255(h)).

       Nelson and Baker require Mr. Pinkerton’s filing to be considered as a second or

successive § 2255 motion. And “if the prisoner’s pleading must be treated as a second or

successive § 2255 motion, the district court does not even have jurisdiction to deny the

relief sought in the pleading.” Nelson, 465 F.3d at 1148. Therefore, no reasonable jurist

could debate the district court’s decision to dismiss the motion for lack of jurisdiction.

Further, no reasonable jurist could debate that dismissal rather than transfer was an

appropriate disposition. See Cline, 531 F.3d at 1252.

                                              3
       A COA is denied and this matter is dismissed. But the district court improperly

dismissed the matter with prejudice, rather than without prejudice. See Abernathy,

713 F.3d at 558. We therefore vacate the judgment and remand with instructions for the

district court to enter a judgment reflecting that the dismissal was without prejudice.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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