United States v. McIntosh ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 29, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 17-3109 & 17-3138
(D.C. No. 2:11-CR-20085-KHV-1)
RODNEY MCINTOSH, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATES OF APPEALABILITY*
_________________________________
Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
In these appeals, Rodney McIntosh challenges the district court’s rulings on
two motions that he filed after the district court denied his initial motion seeking
relief under 28 U.S.C. § 2255. The district court dismissed the first motion for lack
of jurisdiction and denied the second motion on the merits. Under our controlling
precedent, the district court should have deemed both of Mr. McIntosh’s motions as
second or successive § 2255 motions. As such, we lack jurisdiction to entertain
either appeal unless he first obtains a certificate of appealability (COA). Treating
Mr. McIntosh’s appellate filings as requests for COAs, we conclude that his motions
faced a clear procedural bar because the district court lacked subject matter
*
This order is not binding precedent except under the doctrines of law of the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.
jurisdiction to consider them. We therefore deny Mr. McIntosh’s requests for COAs
and dismiss these appeals, with instructions to the district court to vacate its
decisions.
I. Background
Mr. McIntosh was convicted of “eight counts of forcibly assaulting prison
employees during his incarceration at the United States Penitentiary in Leavenworth,
Kansas,” in violation of 18 U.S.C. § 111(a)(1). United States v. McIntosh,
573 F. App’x 760, 761 (10th Cir. 2014). We affirmed his convictions and sentence
on appeal. Id. at 765. After the district court denied his initial motion to vacate his
sentence under § 2255, we denied a COA and dismissed his appeal. United States v.
McIntosh, 676 F. App’x 792, 793, 795 (10th Cir. 2017).
Shortly thereafter, Mr. McIntosh filed a Motion to Set Aside Pursuant to
5 U.S.C. § 706(2)(A) (Motion to Set Aside). He asked the district court to set aside
his convictions and order his immediate release, arguing that the court erred in
denying a jury-instruction claim he had raised in his first § 2255 motion. See
McIntosh, 676 F. App’x at 794 (noting district court’s holding that Mr. McIntosh was
not entitled to a jury instruction on simple assault as a lesser included offense). At
Mr. McIntosh’s request, the district court explicitly declined to construe this motion
as filed under § 2255. R., Vol. IV at 36 n.1.1 The court did hold, on other grounds,
that it lacked jurisdiction to consider the motion. It concluded that § 706(2)(A),
1
Citations to the record are to the record on appeal filed in Appeal
No. 17-3138.
2
a provision of the Administrative Procedures Act (APA), was not an independent
basis for the court to vacate Mr. McIntosh’s criminal convictions, nor was the court
authorized to modify his sentence under 18 U.S.C. § 3582(c) or Fed. R. Crim. P. 35
or 36. The district court therefore dismissed the motion for lack of jurisdiction.
Mr. McIntosh challenges the dismissal of his Motion to Set Aside in Appeal
No. 17-3138. The government moves to dismiss this appeal for lack of appellate
jurisdiction because the motion, although styled differently, was an unauthorized
successive § 2255 motion.
Mr. McIntosh next filed a Motion to Compel Proof of Jurisdiction or Dismiss
for Lack of the Same Pursuant to Fed. R. Civ. P. 60(b)(4) (Motion to
Compel/Dismiss). He asked the district court to compel the government to provide
proof that the court had jurisdiction to prosecute him. Alternatively, he argued that
the judgment was void and should be dismissed for lack of jurisdiction. Citing
Adams v. United States, 319 U.S. 312 (1943), Mr. McIntosh contended that the
district court lacked jurisdiction to prosecute him because “the United States had not
accepted jurisdiction over the lands upon which the crime was committed,”
R., Vol. IV at 38. The district court “overrule[d]” Mr. McIntosh’s jurisdictional
contention “[f]or substantially the reasons stated in prior orders and on the record.”
Id. at 43. Mr. McIntosh challenges the district court’s denial of his Motion to
Compel/Dismiss in Appeal No. 17-3109.
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II. Discussion
A. Mr. McIntosh Must Obtain a COA to Appeal the District Court’s
Orders Dismissing and Denying his Motions
“Where required, a COA is a prerequisite to this court’s exercise of
jurisdiction, and 28 U.S.C. § 2253(c)(1)(B) plainly requires petitioners to obtain a
COA to appeal any final order in a proceeding under section 2255.” United States v.
Springer, __F.3d__, 2017 WL 5247785, at *2 (10th Cir. Nov. 13, 2017) (internal
quotation marks omitted). Mr. McIntosh argues that the district court’s rulings on his
motions were not final orders in a § 2255 proceeding because he did not seek relief
under § 2255. But he filed the motions after the district court denied his first § 2255
motion. And “[a] prisoner’s post-judgment motion”—however styled—“is treated
like a second-or-successive § 2255 motion . . . if it asserts or reasserts claims of error
in the prisoner’s conviction.” United States v. Baker, 718 F.3d 1204, 1206 (10th Cir.
2013).
If Mr. McIntosh had sought to correct errors in the previously conducted
§ 2255 proceeding itself, we would not characterize his motions as successive under
§ 2255. See id. at 1206. But he did not: in each motion he asserted or reasserted
claims of error in his convictions under 18 U.S.C. § 111(a)(1). In his Motion to Set
Aside, he asked the district court to set aside his convictions based on a
jury-instruction error; in his Motion to Compel/Dismiss, he asked the court to dismiss
his convictions based on a lack of jurisdiction. The fact that Mr. McIntosh labeled
his motions as filed under the APA and Rule 60(d)(4) does not change our analysis,
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because “[i]t is the relief sought, not the pleading’s title, that determines whether the
pleading is a § 2255 motion.” Id. at 1207 (brackets and internal quotation marks
omitted). Therefore, although styled differently, both of Mr. McIntosh’s motions
were second or successive motions seeking relief under § 2255.2
The government construes Mr. McIntosh’s Motion to Compel/Dismiss, in part,
as a motion to compel discovery. Even so, he sought discovery in support of a
request for relief under § 2255. In denying the entire motion, the district court
entered a final order in a § 2255 proceeding. As such, Mr. McIntosh cannot appeal
any part of the order without first obtaining a COA. See Dulworth v. Jones, 496 F.3d
1133, 1136 (10th Cir. 2007) (“[I]n our judgment all appeals from final orders in
habeas cases, of whatever type, should be required to meet the COA standard to
proceed.”).
Accordingly, because the district court was proceeding under § 2255,
Mr. McIntosh must obtain a COA before this court can review the district court’s
orders dismissing and denying his motions. See Springer, 2017 WL 5247785, at *2.
B. We Deny Mr. McIntosh’s Request for a COA in Each of His
Appeals
The district court failed to treat either of Mr. McIntosh’s motions as
proceeding under § 2255, and he does not expressly seek a COA from this court. But
we construe his notices of appeal as requests for COAs. See id. at *9.
2
Mr. McIntosh asserts that he is entitled to notice before a court construes his
motions as filed under § 2255. But this restriction on recharacterization applies only
to initial § 2255 motions. See United States v. Nelson, 465 F.3d 1145, 1149
(10th Cir. 2006).
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When a district court denies a § 2255 motion on the merits, our COA inquiry
typically focuses on whether “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). But where, as in Appeal No. 17-3109, the district court
summarily denies a successive § 2255 motion on the merits, despite the absence of
authorization, we must first assess our own jurisdiction. That is, we must decide
whether a COA should issue. And we may deny a COA if there is a plain procedural
bar to habeas relief, even if the district court did not invoke that bar. See Springer,
2017 WL 5247785, at *9. We apply this rule to Appeal No. 17-3109 because the
district court denied the successive § 2255 motion on the merits while lacking
jurisdiction to do so.
The district court denied Appeal No. 17-3138 for lack of jurisdiction (albeit on
grounds other than the absence of authorization to consider a second or successive
§ 2255 motion). When a district court dismisses a § 2255 motion for lack of
jurisdiction, we apply the two-part COA test applicable to procedural rulings, asking
if “jurists of reason would find it debatable” (1) “whether the petition states a valid
claim of the denial of a constitutional right” and (2) “whether the district court was
correct in its procedural ruling.” Id. (internal quotation marks omitted). Under this
latter test, “we may deny a COA by proceeding first to resolve the issue whose
answer is more apparent from the record.” Id. (internal quotation marks omitted).
We apply this COA standard in Appeal No. 17-3138 because the district court
dismissed Mr. McIntosh’s Motion to Set Aside for lack of jurisdiction.
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We deny a COA in each of Mr. McIntosh’s appeals because both of his
motions would fail under “a plain procedural bar”; consequently, “a reasonable jurist
could not conclude . . . that the petitioner should be allowed to proceed further. In
such a circumstance, no appeal would be warranted.” Slack, 529 U.S. at 484. We
can deny a COA where there is a plain procedural bar to relief even when the district
court did not invoke that bar. Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005)
(“In general, we have discretion to affirm on any ground adequately supported by the
record.” (brackets and internal quotation marks omitted)). Thus, we have denied a
COA based on a plain procedural bar where the district court dismissed the claim on
a different ground. In Davis, we applied the “in custody” requirement for habeas
relief under 28 U.S.C. § 2241 to deny a COA on a claim that the district court had
dismissed as time-barred. Id. at 833-34. We have also denied a COA on this basis
where the district court denied the claims on the merits. In Springer, we applied a
jurisdictional bar to deny a COA where the district court failed to treat a motion as
proceeding under § 2255 and, without this court’s authorization, summarily denied a
successive claim on the merits. 2017 WL 5247785, at *10-11.
The procedural bar we applied in Springer also precludes a COA in
Mr. McIntosh’s appeals. As here, the prisoner in Springer had previously filed an
initial § 2255 motion, making his subsequent motion subject to the statutory
constraints on filing a second or successive motion. Id. at *10. “One such constraint
precludes a petitioner from filing a second or successive § 2255 motion unless he
first obtains an order from the appropriate court of appeals authorizing the district
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court to consider the motion.” Id. at *11 (internal quotation marks omitted). Section
2255(h) imposes this authorization requirement on second or successive § 2255
motions. See 28 U.S.C. § 2255(h); see also 28 U.S.C. § 2244(b)(3)(A). Circuit court
authorization is jurisdictional; therefore, a district court lacks jurisdiction to consider
the merits of an unauthorized § 2255 motion. Springer, 2017 WL 5247785, at *11.
Thus, when the district court summarily denied Mr. McIntosh’s Motion to
Compel/Dismiss on the merits rather than dismissing it as unauthorized, it acted
without subject matter jurisdiction. See id. And although the district court relied on
an incorrect basis for doing so, it properly dismissed his Motion to Set Aside for lack
of jurisdiction.
Under these circumstances, reasonable jurists could not debate whether the
district court lacked jurisdiction to consider both of Mr. McIntosh’s motions.
Therefore, even though the district court did not rely on it, we deny a COA in each of
his appeals based on this jurisdictional procedural bar. See id.8
III. Conclusion
We deny a COA in Appeal Nos. 17-3109 and 17-3138. We dismiss both
appeals, with instructions to the district court to vacate its decisions. We deny as
moot the government’s motion to dismiss Appeal No. 17-3138.3
Entered for the Court
Carolyn B. McHugh
Circuit Judge
3
We decline to exercise our discretion to construe Mr. McIntosh’s appeals as
requests for authorization. Springer, 2017 WL 5247785, at *11 n.12.
9