United States v. Moore , 589 F. App'x 414 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 6, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-5110
(D.C. Nos. 4:98-CR-0078-CVE-1 &
CHRISTOPHER MOORE, JR., 4:14-CV-00386-CVE-TLW)
(N.D. Okla.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, EBEL, and GORSUCH, Circuit Judges.
Christopher Moore, Jr., proceeding pro se, seeks a certificate of appealability
(COA) to appeal from the district court’s determination that his 28 U.S.C. § 2255
motion was an unauthorized second or successive § 2255 motion that the court lacked
jurisdiction to consider. See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251
(10th Cir. 2008) (per curiam). We deny a COA and dismiss this matter.
Mr. Moore (who refers to himself as Christopher Moore-Bey) was sentenced to
950 months of imprisonment for bank robbery, carjacking, and using a firearm in
connection with a crime of violence. See United States v. Moore, 198 F.3d 793, 794
*
This order is not binding precedent except under the doctrines of law of the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.
(10th Cir. 1999). He since has filed multiple § 2255 motions in the district court.
See United States v. Moore, 432 F. App’x 762, 763-64 (10th Cir. 2011) (setting forth
filing history).
On July 10, 2014, Mr. Moore filed a new § 2255 motion and affidavit
complaining about his counsel’s performance on direct appeal. The district court
concluded that the motion attacked his convictions and therefore was another
unauthorized successive § 2255 motion that the court lacked jurisdiction to consider.
It declined to transfer the motion to this court and dismissed it for lack of
jurisdiction.
Mr. Moore must obtain a COA to appeal, see 28 U.S.C. § 2253(c)(1)(B),
meaning that he 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). His materials generally fail to
address the procedural aspect of the district court’s decision, instead focusing on the
validity of his convictions and sentence. But no reasonable jurist could conclude that
the district court erred in (1) determining that the motion was an unauthorized second
or successive § 2255 motion or (2) dismissing it for lack of jurisdiction. See Cline,
531 F.3d at 1251-52.
Liberally construing Mr. Moore’s COA materials, it appears that, alternatively,
he may be seeking authorization for his motion under § 2255(h)(2), which allows a
-2-
successive § 2255 motion that relies on “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” To the extent he seeks authorization, we deny it.
Mr. Moore cites Alleyne v. United States, 133 S. Ct. 2151 (2013);
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010); Castillo v. United States,
530 U.S. 120 (2000); Bousley v. United States, 523 U.S. 614 (1998); and Bailey v.
United States, 516 U.S. 137 (1995). None of these decisions satisfies § 2255(h)(2).
Alleyne did not announce a retroactively applicable rule. See In re Payne, 733 F.3d
1027, 1029-30 (10th Cir. 2013). Carachuri-Rosendo is an immigration decision
mainly involving statutory interpretation, and Mr. Moore fails to explain how it
announced a retroactive new rule of constitutional law. Finally, none of the
remaining decisions created a “new rule” that was “previously unavailable” to
Mr. Moore: Castillo was decided before he filed his first § 2255 motion, and Bousley
and Bailey were decided before his conviction.
The request to proceed in forma pauperis is granted. The request for a COA is
denied and this matter is dismissed. To the extent that Mr. Moore alternatively seeks
authorization under § 2255(h), the request is denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-3-