United States v. Washington , 535 F. App'x 753 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 17, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-6131
(D.C. Nos. 5:10-CV-00262-F &
JAMES LEO WASHINGTON, III, 5:08-CR-00250-F-1)
(W.D. Okla.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, EBEL, and TYMKOVICH, Circuit Judges.
James Leo Washington, III, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s decision construing
his “Notice of Agency Error in Violation of Substantive & Common Law Jural
Rights for Actual and Due Legal Notice & Redress” as an unauthorized second or
successive 28 U.S.C. § 2255 motion and dismissing it for lack of jurisdiction. We
deny a COA and dismiss this matter.
In October 2008, Mr. Washington pleaded guilty to possession of a firearm
and ammunition after prior conviction of a felony. He was sentenced pursuant to 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This order is not binding precedent except under the doctrines of law of the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.
Armed Career Criminal Act (ACCA) to the mandatory minimum sentence of 180
months’ imprisonment. He did not file a direct appeal. In March 2010, he filed a
§ 2255 motion to vacate, set aside or correct his conviction and sentence. The district
court denied the motion, and we denied his request for a COA. See United States v.
Washington, 425 F. App’x 735, 735-36 (10th Cir. 2011).
In April 2013, Mr. Washington filed a “Notice of Agency Error in Violation
of Substantive & Common Law Jural Rights for Actual and Due Legal Notice &
Redress.” R., Vol. 1 at 31. The district court construed the “Notice” as an attempt to
file a second or successive § 2255 motion without prior authorization and dismissed
it for lack of jurisdiction. Mr. Washington now seeks a COA to appeal from that
decision.
To obtain a COA, Mr. Washington must show 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 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).
Although Mr. Washington’s “Notice” does not indicate that it is filed pursuant
to § 2255, “[i]t is the relief sought, not [the] pleading’s title, that determines whether
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the pleading is a § 2255 motion,” United States v. Nelson, 465 F.3d 1145, 1149
(10th Cir. 2006). In his “Notice,” Mr. Washington contends that he should not have
been sentenced pursuant to the ACCA, and asks the court to “correct these prior
sentencing errors,” because his sentence was imposed “in apparent violation of
federal law.” R., Vol. 1 at 31-32. Mr. Washington’s contention that his sentence
violates federal law and should be vacated is properly the subject of a § 2255 motion.
See Nelson, 465 F.3d at 1148 (explaining that “[a] § 2255 motion is one claiming the
right to be released upon the ground that the sentence was imposed in violation . . . of
the laws of the United States”).
The district court recognized that Mr. Washington was seeking to vacate his
sentence through the filing of his “Notice,” and that therefore his pleading constituted
a second or successive § 2255 motion for which he had not received the proper
authorization. Reasonable jurists could not debate that the district court was correct
in its procedural ruling to dismiss Mr. Washington’s “Notice” for lack of jurisdiction.
Accordingly, we deny a COA and dismiss this matter. We grant Mr. Washington’s
motion for leave to proceed on appeal without prepayment of costs or fees.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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