United States v. Chon ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
May 23, 2014
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-4029
(D.C. Nos. 2:09-CV-00654-TS and
TAE H. CHON, 2:01-CR-00487-TS-1)
(D. Utah)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
In years past this court has affirmed Tae Chon’s federal criminal conviction
and rejected two collateral challenges to that conviction. See United States v.
Chon, 291 F. App’x 877, 883 (10th Cir. 2008); United States v. Chon, 434 F.
App’x 730 (10th Cir. 2011); United States v. Chon, 512 F. App’x 855, 858-59
(10th Cir. 2013). Today we are presented with a third collateral challenge. After
*
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent except under the doctrines of law of the case, res judicata,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.
the district court refused to grant relief, Mr. Chon filed papers with this court
seeking a certificate of appealability (COA) under 28 U.S.C. § 2253 and with it
the opportunity to contest this latest adverse ruling.
But as it happens Mr. Chon wasn’t entitled to proceed in district court in
the first place. When it comes to second or successive collateral attacks on
federal criminal convictions, they must be authorized by this court before they
may lawfully proceed in district court. See 28 U.S.C. § 2255(h). Only after
exhausting this process may a movant then seek a COA to pursue an appeal of an
adverse district court ruling in a second or successive collateral challenge. Put
simply, then, there is no lawful COA request before us, no proper appeal, and
there was no lawful proceeding in district court.
That, however, does not necessarily doom Mr. Chon’s current claim.
Rather than dismiss the action outright, we may construe his putative COA
application as a petition to pursue a second or successive collateral proceeding
under § 2255(h). See Spitznas v. Boone, 464 F.3d 1213, 1219 n.8 (10th Cir.
2006). Doing so here, though, we find no such proceeding lawfully warranted.
Before authorizing a second or successive petition, this court must be able to say
that the movant has presented newly discovered evidence suggesting his
innocence, or that he’s identified a new rule of constitutional law retroactively
applicable to his case. See 28 U.S.C. § 2255(h). Neither circumstance pertains
here.
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The request to pursue a third § 2255 motion is denied.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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