FILED
United States Court of Appeals
Tenth Circuit
February 12, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-2260
v. (D. New Mexico)
CHARLES ELLWOOD GWATHNEY, (D.C. Nos. CIV-07-00899-WJ-LAM
and 1:04-CR-01533-WJ-1)
Defendant - Appellant.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this proceeding. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument.
Charles Gwathney, currently incarcerated in the federal correctional facility
in Morgantown, West Virginia, and proceeding pro se, seeks a certificate of
*
This order and judgment is not binding precedent except under the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.
appealability (“COA”) to enable him to appeal the denial for lack of jurisdiction
of his successive 28 U.S.C. § 2255 petition. We affirm.
BACKGROUND
Mr. Gwathney is serving a 137-month sentence following his conviction, by
a jury, of possession of more than 100 kilos of marijuana. Our court affirmed his
conviction on direct appeal. United States v. Gwathney, 465 F.3d 1133 (10 th Cir.
2006), cert. denied, 550 U.S. 927 (2007). Mr. Gwathney then filed a motion in
the district court under 28 U.S.C. § 2255, which was denied. On appeal, our court
denied Mr. Gwathney a certificate of appealability (“COA”), a prerequisite to
pursuing his appeal. United States v. Gwathney, 318 Fed. Appx. 616 (10 th Cir.
Oct. 31, 2008) (unpublished), cert. denied, 129 S. Ct. 1636 (2009). Mr.
Gwathney then filed a Fed. R. Civ. P. 60(b) motion, which the district court
construed as an unauthorized second or successive § 2255 motion, and it
transferred the motion to this court. This court denied Mr. Gwathney’s motion
for remand, and dismissed the matter. In re: Gwathney, No. 08-2145 (10 th Cir.
July 30, 2008) (unpublished order). Next, Mr. Gwathney filed an original petition
before us, seeking permission to file a successive § 2255 motion, which we
denied. In re: Gwathney, No. 09-2161 (10 th Cir. July 2, 2009) (unpublished
order).
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Mr. Gwathney then returned to district court, filing a motion labeled
“Motion Pursuant to the Federal Rules of Civil Procedure Rule 5.1 Challenging
the Constitutionality to a Statute-Notice, Certification, and Intervention Used to
Justify Proven Perjury of Officer Smid While Under Oath as to Probable Cause.”
R. Vol. 1 at 343. The district court construed it as a second or successive § 2255
motion. “A district court does not have jurisdiction to address the merits of a
second or successive § 2255 . . . claim until [the Tenth Circuit] has granted the
required authorization.” In re Cline, 531 F.3d 1249, 1251 (10 th Cir. 2008). Thus,
“[w]hen a second or successive § 2254 or § 2255 claim is filed in the district
court without the required authorization from this court, the district court may
transfer the matter to this court if it determines it is in the interest of justice to do
so under § 1631, or it may dismiss the motion or petition for lack of jurisdiction.”
Id. at 1252. Among the factors relevant in determining whether a transfer is in
the interest of justice include “whether the claims alleged are likely to have
merit.” Id. at 1251. Additionally, 28 U.S.C. § 2255(h) specifically provides that
a second or successive motion will be allowed to proceed only if a panel of the
appropriate court of appeals certifies that the motion contains:
(1) newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense; or
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(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255(h).
The district court found that Mr. Gwathney’s motion did not rely on newly
discovered evidence or a new rule of constitutional law that was previously
unavailable. Indeed, Mr. Gwathney challenges the constitutionality of the New
Mexico statute that authorized the search of his truck, that led to the seizure of
the 100 kilograms of marijuana. There is nothing new, either in fact or law, in
that challenge. The district court decided it would not be in the interest of justice
to transfer Mr. Gwathney’s motion to our court because the motion “does not
satisfy the standards for authorization of a successive § 2255 motion.” Mem. Op.
& Order at 3, R. Vol. 1 at 365. It accordingly denied Mr. Gwathney’s motion for
lack of jurisdiction.
The district court did not act on the issue of a COA. Pursuant to the
General Order of October 1, 1996, and former Tenth Cir. R. 22.1(c), a COA is
deemed denied. Mr. Gwathney filed an application for a COA with this court. A
COA is a jurisdictional prerequisite, requiring a petitioner to make “a substantial
showing of the denial of a constitutional right” before proceeding on appeal. 28
U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Where, as
here, the district court denies a petition on procedural grounds, we may not issue
a COA unless “the prisoner shows, at least, that jurists of reason would find it
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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). Therefore, Mr. Gwathney must show that reasonable jurists could debate
whether the district court was correct in dismissing the case for lack of
jurisdiction and in deciding not to transfer the case to our court under 28 U.S.C.
§ 1631. He cannot make this showing, for no reasonable jurist could debate the
correctness of the district court’s conclusion that Mr. Gwathney’s motion does not
satisfy the standards for authorization of a successive § 2255 motion and it would
therefore not be in the interests of justice to transfer his motion to our court.
In sum, the district court correctly determined that it was not in the interest
of justice to transfer Mr. Gwathney’s unauthorized petition to our court, and the
court consequently properly dismissed the petition for lack of jurisdiction.
Mr. Gwathney cannot establish that reasonable jurists would question the
propriety of the district court’s holding. We therefore deny Mr. Gwathney a COA
and dismiss this matter.
CONCLUSION
For the foregoing reasons, the application for a COA is DENIED and the
matter is DISMISSED. As the above order indicates, Mr. Gwathney has filed a
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number of unsuccessful motions under § 2255. We caution him that further such
filings may subject him to sanctions, including filing restrictions.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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