United States v. Pinkerton , 694 F. App'x 652 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 31, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-8038
(D.C. Nos. 1:13-CR-00170-ABJ-1)
JOHN SCOTT PINKERTON, (D. Wyo.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BRISCOE, HARTZ, and O’BRIEN, Circuit Judges.
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John Scott Pinkerton pled guilty to attempted online enticement of a minor in
violation of 18 U.S.C. § 2422(b), and, consistent with a plea agreement executed pursuant
to Fed. R. Crim. P. 11(c)(1)(C), received the statutory minimum sentence of ten years’
imprisonment. After a prior motion for relief under 28 U.S.C. § 2255 was dismissed as
untimely, he filed a pleading entitled “Constitutional Challenge to Statute of 18 U.S.C.
§ 2422(b),” claiming that the statute underlying his conviction is unconstitutional on its
face and as applied to him. R. Vol. 2 at 11-12. The district court concluded the pleading
was in substance a second or successive § 2255 motion and dismissed it for lack of the
circuit authorization required under 28 U.S.C. §§ 2244(b)(3) and 2255(h). Because 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This order is not binding precedent except under the doctrines of law of the case,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.
correctness of that disposition is not debatable by reasonable jurists, we deny a COA and
dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (stating standard
for COA).
In his appellate brief, Mr. Pinkerton continues to argue the merits of his motion
but does not explain how the district court erred in characterizing it as a second or
successive § 2255 motion. A challenge to the validity of a federal conviction is properly
brought under § 2255, see, e.g., Stanko v. Davis, 617 F.3d 1262, 1267 (10th Cir. 2010),
and Mr. Pinkerton’s claim that the statute underlying his conviction is unconstitutional
plainly entails such a challenge. Thus, because the dismissal of his first § 2255 motion as
time-barred constituted a decision on the merits rendering the instant motion second or
successive, see In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011), the district court
properly dismissed the latter for lack of jurisdiction after concluding, appropriately, that a
transfer to this court to consider authorization under the standards in § 2255(h) would be
futile, see In re Cline, 531 F.3d 1249, 1250-52 (10th Cir. 2008) (per curiam). In the latter
regard, we note Mr. Pinkerton’s motion did not cite either newly discovered evidence of
innocence, see 28 U.S.C. § 2255(h)(1), or a new rule of constitutional law made
retroactive to cases on collateral review by the Supreme Court, see id. § 2255(h)(2).
Mr. Pinkerton also briefly asserted in his motion that the “only sexual activity that
the federal government can actually prosecute . . . [under] § 2241 et seq, is acts
committed while in federal territory.” R. Vol. 2 at 15. On appeal he adds he “has never
been provided proof of subject-matter jurisdiction . . . as mandated under . . . 40 USC
§ 3112(b) [relating to acquisition of federal jurisdiction over land ceded by States].”
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Aplt. Combined Opening Br. and App. for COA at 4 (also referring in this regard to
federal legislative authority granted by U.S. Const. art. I, § 8, cl. 17). This objection falls
squarely within the scope of § 2255, which encompasses claims “that the court was
without jurisdiction to impose . . . sentence” on the defendant. 28 U.S.C. § 2255(a).
Because it could have been brought in Mr. Pinkerton’s first § 2255 motion, it was subject
to dismissal for the same reason as his challenge to the constitutionality of § 2422.
On appeal, Mr. Pinkerton complains of his allegedly invalid commitment to the
Federal Bureau of Prisons pursuant to statutes that have “not been properly enacted under
Public Law, nor placed in the Statutes at Large.” Aplt. Combined Opening Br. and App.
for COA at 4. This claim was not raised in the pleading dismissed by the district court
and thus has nothing to do with whether that pleading should have been treated as a
second or successive § 2255 motion.
Mr. Pinkerton asks this court, as he did the district court, to certify his challenge
regarding § 2422 to the Attorney General under 28 U.S.C. § 2403(a). Indeed, he insists it
was error for the district court not to do so. But § 2403(a)—and Fed. R. App. P. 44(a)
and Fed. R. Civ. P. 5.1, which also address certification of constitutional challenges to
federal statutes—concern notice to the United States of such challenges when the
government is not a party to the action, so that the United States may intervene to defend
the statute under attack. Here, the United States is a party.
The request for a COA is denied, the appeal is dismissed, and the motion for
certification is denied. Because Mr. Pinkerton has failed to advance a non-frivolous
argument in support of this appeal, we deny his motion to proceed in forma pauperis and
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“remind him of his obligation to pay the filing fee even though his request for a COA has
been denied.” Clark v. Oklahoma, 468 F.3d 711, 715 (10th Cir. 2006).
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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