United States v. Brown

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 3, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-7020
(D.C. Nos. 6:17-CV-00032-RAW,
BOBBY JOE BROWN, JR., 6:13-CR-00005-RAW-1 &
6:15-CV-00483-RAW)
Defendant - Appellant. (E.D. Okla.)
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
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Bobby Joe Brown, Jr., 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.
In March 2013, Mr. Brown pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced under the
Armed Career Criminal Act (ACCA). In December 2015, Mr. Brown filed a § 2255
motion seeking relief under Johnson v. United States, 135 S. Ct. 2551 (2015). In
Johnson, the Supreme Court invalidated the residual clause in the ACCA’s definition of
“violent felony” as unconstitutionally vague, see id. at 2557, 2563.
*
This order is not binding precedent except under the doctrines of law of the case,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.
On January 12, 2017, the district court denied the § 2255 motion after determining
that the residual clause had no effect upon Mr. Brown’s sentence. As the court explained,
the ACCA enhancement was based on Mr. Brown’s convictions for two serious drug
offenses and a conviction for assault and battery with a dangerous weapon, which is
considered a violent felony under the elements clause, not the residual clause.
Mr. Brown did not seek to appeal from the district court’s decision. Instead, two
weeks later, on January 26, Mr. Brown filed a second § 2255 motion in which he again
argued that he was entitled to relief from his sentence under Johnson and related cases.
The district court dismissed the motion for lack of jurisdiction, noting that Mr. Brown
had filed his second § 2255 motion without seeking the proper circuit-court authorization.
Mr. Brown now seeks a COA to appeal the dismissal of his second § 2255 motion.
To obtain a COA, Mr. Brown 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. 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. Brown filed a second § 2255 motion without the proper authorization. And he
offers no argument in his Motion for COA, his supplement to that motion, or his
addendum to that motion that explains how the district court erred in its procedural
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ruling. Reasonable jurists could not debate that the district court was correct to treat
Mr. Brown’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. Mr. Brown’s motion for
leave to proceed on appeal without prepayment of costs or fees is denied as moot. The
relevant statute, 28 U.S.C. §1915(a)(1), does not permit litigants to avoid payment of
filing and docketing fees, only prepayment of those fees. Mr. Brown therefore remains
obligated to pay all filing and docketing fees.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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