United States v. Davalos-Ponce

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 30, 2016
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2045
(D.C. Nos. 2:15-CV-01070-RB-KK &
JUAN DAVALOS-PONCE, 2:12-CR-03033-RB-1)
(D. N.M.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before PHILLIPS, O’BRIEN, and MORITZ, Circuit Judges.
After Juan Davalos-Ponce pled guilty to reentry of a removed alien in
violation of 8 U.S.C. § 1326(a) and (b), the district court sentenced him to 63
months’ imprisonment. Proceeding pro se, he now seeks a certificate of appealability
(COA) under 28 U.S.C. § 2253(c) to challenge the district court’s determination in its
January 19, 2016, order that his recent motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence is an unauthorized second or successive motion, over
which the district court lacks jurisdiction. For the reasons that follow, we deny a
COA and dismiss the appeal.
*
This order is not binding precedent except under the doctrines of law of the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.
Mr. Davalos-Ponce has already filed one unsuccessful §2255 motion, so this is
his second one. Furthermore, he did not obtain this court’s authorization to file a
second or successive petition, as required by 28 U.S.C. § 2244(b)(3). Accordingly,
the district court determined that it lacked jurisdiction over the motion and dismissed
it. The district court also denied Mr. Davalos-Ponce’s alternative request that his
motion be treated as an application for a writ of habeas corpus under 28 U.S.C.
§ 2241 because he did not satisfy the requirements of 28 U.S.C. § 2255(e).
Because his habeas petition was dismissed on procedural grounds,
Mr. Davalos-Ponce can obtain a COA only if he shows “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional 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). We bypass the constitutional question because we can readily dispose of
this case based on the procedural one. See id.
Even reviewing Mr. Davalos-Ponce’s application with the liberality due pro se
applicants, see Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), there is
nothing debatable about the district court’s procedural ruling. “A district court does
not have jurisdiction to address the merits of a second or successive § 2255 . . . claim
until this court has granted the required authorization.” In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008) (per curiam). Mr. Davalos-Ponce had not obtained the
-2-
required authorization when he filed his successive § 2255 motion. Accordingly, we
deny a COA and dismiss this matter.
Mr. Davalos-Ponce’s motion to proceed without prepayment of costs or fees is
granted. Only prepayment of fees is waived, not the fees themselves. 28 U.S.C.
§ 1915(a)(1). Mr. Davalos-Ponce is still required to pay all filing and docketing fees
in full. See id. § 1915(b).
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
-3-