United States v. Dago ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 19, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
v. No. 13-1158
(D.C. Nos. 1:13-CV-00735-REB and
GEORGE ERMAN DAGO, 1:92-CR-00245-REB-1)
(D. Colo.)
Defendant−Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, EBEL, and MATHESON, Circuit Judges.
George Erman Dago, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) to appeal the district court’s dismissal of his second
28 U.S.C. § 2255 motion for lack of jurisdiction. We deny a COA and dismiss the
matter.
Mr. Dago was convicted in 1992 of multiple counts related to drug trafficking
and sentenced to 360 months’ imprisonment. On appeal, we vacated several of his
convictions and some special assessments, but these issues did not affect the total
*
This order is not binding precedent except under the doctrines of law of the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.
length of his prison term. See United States v. Dago, No. 93-1042, 1994 WL 387836,
at *1, *7 (10th Cir. July 26, 1994). He timely filed a 28 U.S.C. § 2255 motion, which
the district court denied. He sought a COA and we granted it on four issues, but we
ultimately affirmed the district court’s judgment. See United States v. Dago, 441
F.3d 1238, 1241-42 (10th Cir. 2006).
In September 2012, Mr. Dago filed a motion for authorization to file a second
or successive § 2255 motion seeking to raise a claim that his counsel was ineffective
for failing to present him with a favorable plea offer received from the government.
In support of his motion, he cited to the Supreme Court’s decisions in Lafler v.
Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012). He
argued that these decisions adopted new rules of constitutional law that entitled him
to authorization under § 2255(h)(2). We denied authorization without reaching that
question because the Supreme Court had not made the decisions “retroactive to cases
on collateral review,” as required by § 2255(h)(2). In re Dago, No. 12-1353, Order
at 2-3 (10th Cir. Oct. 4, 2012).
In March 2013, Mr. Dago filed a second § 2255 motion. The district court
determined that it was an unauthorized second or successive motion and dismissed it
for lack of jurisdiction. Mr. Dago now seeks a COA to appeal that dismissal.
To obtain a COA, Mr. Dago must show both that “jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional
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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).
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. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). In the absence of such
authorization, a district court lacks jurisdiction to address the merits of a second or
successive § 2255 motion. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)
(per curiam).
Mr. Dago’s first § 2255 motion was denied on the merits. He then sought
authorization to file a second or successive § 2255 motion and it was denied. Even
though he lacked authorization to do so, he filed a second § 2255 motion challenging
the same convictions and sentence as his first § 2255 motion. The district court
properly determined that Mr. Dago had filed an unauthorized second or successive
§ 2255 motion.
In his COA application, Mr. Dago seeks to rely on Lafler and Cooper to
establish that his claims are not successive. This is the same argument that he made
in his motion for authorization, which we denied. And we recently joined six other
circuits in holding that these Supreme Court decisions do not establish a new rule of
constitutional law. See In re Graham, 714 F.3d 1181, 1182-83 (10th Cir. 2013)
(per curiam). The district court therefore properly exercised its discretion not to
transfer the motion and to dismiss it for lack of jurisdiction instead. See Cline, 531
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F.3d at 1252 (explaining that district court may transfer unauthorized second or
successive § 2255 motion to this court “if it determines it is in the interest of justice
to do so under [28 U.S.C.] § 1631, or it may dismiss the motion . . . for lack of
jurisdiction.”).
Reasonable jurists could not debate that the district court was correct to treat
Mr. Dago’s new § 2255 motion as an unauthorized second or successive § 2255
motion and dismiss it for lack of jurisdiction. Accordingly, we deny a COA and
dismiss this matter. We grant Dago’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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