FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 12, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-8136
(D.C. Nos. 2:14-CV-00048-NDF &
JASON CLAYCOMB, 2:07-CR-00196-CAB-5)
(D. Wyo.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before GORSUCH, BACHARACH, and MORITZ, Circuit Judges.
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Jason Claycomb, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to challenge the district court’s decision construing his
Fed. R. Civ. P. 59(e) motion as an unauthorized second or successive 28 U.S.C.
§ 2255 motion and dismissing it for lack of jurisdiction. We deny a COA and
dismiss this matter.
A jury convicted Mr. Claycomb of the following drug trafficking and firearm
offenses: (1) conspiracy to possess with intent to distribute, and to distribute,
methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846; (2) possession of a machine gun in furtherance of a drug trafficking crime,
*
This order is not binding precedent, except under the doctrines of law of the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.
in violation of 18 U.S.C. § 924(c)(1)(B)(ii); and (3) unlawful possession of an
unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871.
He was sentenced to consecutive thirty-year terms for the first two offenses and a
concurrent ten-year term for the third offense.
We affirmed Mr. Claycomb’s convictions and sentence on direct appeal;
however, the district court later vacated the ten-year concurrent sentence on
ineffective-assistance-of-counsel grounds when it granted, in part, his initial § 2255
motion. Since that time, he has filed an unauthorized second or successive § 2255
motion, which the district court dismissed for lack of jurisdiction. He also has filed
two Fed. R. Civ. P. 60(b) motions, which the district court dismissed as unauthorized
second or successive § 2255 motions.
Mr. Claycomb’s latest attempt to circumvent the authorization requirement
comes in the form of a motion under Fed. R. Civ. P. 52(a) and 59(e), filed on June 1,
2015, with an attached memorandum of law in support of a motion to vacate under
28 U.S.C. § 2255(f)(4) (which he did not file separately). In his Rule 59(e) motion,
he asked the district court to reconsider its denial of his last § 2255 motion, at least
with respect to the drug quantities underlying his conviction. He repeated arguments
from his prior § 2255 motion, asserting once again that newly discovered evidence
shows the government did not establish all of the elements of the drug offenses
through a credible lab report. He cited, in particular, a 2007 laboratory report by the
Division of Criminal Investigation and excerpts from his co-defendant’s plea hearing
in 2008.
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In an order dated December 3, 2015, the district court concluded that
Mr. Claycomb’s Rule 59(e) motion itself is a second or successive § 2255 motion,
notwithstanding its title. 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. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization,
a district court lacks jurisdiction to address the merits of a second or successive
§ 2255 motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
Consequently, the district court dismissed the motion for lack of jurisdiction.
The district court explained that like a Rule 60(b) motion, a Rule 59(e) motion
that “‘in substance or effect asserts [or reasserts] a federal basis for relief from the
petitioner’s underlying conviction’ is actually a second or successive . . . § 2255
motion and requires authorization by the circuit court in order to proceed in district
court.” Claycomb v. United States, No. 2:14-cv-00048-NDF, Doc. 29 (Order
Dismissing Petitioner’s Motion under Fed. R. Civ. P. 52(a)/59(e)) at 5 (D. Wyo.
Dec. 3, 2015) (quoting United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006)).
It further explained that one motion that falls into this category is a motion seeking
leave to present “newly discovered evidence” to advance the merits of a claim that
was denied previously. Id. at 5-6 (citing Spitznas v. Boone, 464 F.3d 1213, 1215
(10th Cir. 2006)). It then dissected the Rule 59(e) motion and found that, in essence,
Mr. Claycomb was reasserting a federal basis for relief from his underlying
conviction. And it found Mr. Claycomb was not entitled to an exception to the bar
on successive § 2255 motions under United States v. Williams, 790 F.3d 1059, 1068
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(10th Cir.), cert. denied, 136 S. Ct. 604 (2015), because the evidence in question
existed at the time he filed his initial § 2255 motion.
Mr. Claycomb now seeks a COA under 28 U.S.C. § 2253(c) to challenge this
decision. To obtain one, he 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). Even reviewing Mr. Claycomb’s application with the
liberality due pro se applicants, see Garza v. Davis, 596 F.3d 1198, 1201 n.2
(10th Cir. 2010), reasonable jurists could not debate that the district court was correct
in its procedural ruling to treat Mr. Claycomb’s Rule 59(e) motion as an unauthorized
second or successive § 2255 motion and to dismiss it for lack of jurisdiction.
Accordingly, we deny a COA and dismiss this matter.
Mr. Claycomb’s request 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. Since we
have reached the merits of this matter, prepayment of fees is no longer an issue. Though
we have disposed of this matter on the merits, Mr. Claycomb remains obligated to pay all
filing and docketing fees, a total of $505. He is directed to pay the fees in full to the
Clerk of the District Court for the District of Wyoming.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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