FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2242
(D.C. Nos. 1:16-CV-00900-JAP-LAM &
MATTHEW MOWERY, 1:08-CR-02436-JAP-1)
(D. N.M.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before BRISCOE, HOLMES, and MORITZ, Circuit Judges.
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Pro se federal prisoner Matthew Mowery seeks a certificate of appealability
(COA) to appeal the district court’s dismissal of his motion under the Criminal Justice
Act of 1964, 18 U.S.C. § 3006A, as an unauthorized second or successive 28 U.S.C.
§ 2255 motion. We deny a COA and dismiss this matter.
In 2009, Mr. Mowery pleaded guilty to possession with intent to distribute 500
grams and more of a mixture and substance containing a detectible amount of
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He voluntarily
dismissed his direct appeal. In 2010, through counsel, he filed a § 2255 motion alleging
that he received ineffective assistance of counsel in his plea negotiations and at
*
This order is not binding precedent except under the doctrines of law of the case,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.
sentencing. The district court denied the motion, and this court denied a COA and
dismissed the appeal, United States v. Mowery, 512 F. App’x 824, 830 (10th Cir. 2013).
The district court then dismissed subsequent post-judgment motions as unauthorized
second or successive § 2255 motions, and this court again denied a COA and dismissed
the appeal, United States v. Mowery, 594 F. App’x 546, 548 (10th Cir. 2015).
In 2016, Mr. Mowery filed a document entitled “Defendant’s PRO SE Motion
Requesting a Special Discovery Hearing to Determine if the Level of Court-Appointed
Representation Was Adequate, Pursuant to the Criminal Justice Act (18 USC § 3006A),”
in which he complained that his counsel’s ineffectiveness in his criminal case violated
§ 3006A and his constitutional rights. The district court clerk docketed the motion as one
under § 2255. Mr. Mowery objected to the clerk characterizing his motion as a § 2255
motion. The district court determined, however, that the motion attacked the validity of
Mr. Mowery’s conviction, and therefore it properly was a § 2255 motion. Because it was
an unauthorized, successive § 2255 motion, the district court dismissed it for lack of
jurisdiction. Mr. Mowery now seeks to appeal.
To appeal, Mr. Mowery must obtain a COA. See United States v. Harper,
545 F.3d 1230, 1233 (10th Cir. 2008). Where, as here, a district court has dismissed a
filing on procedural grounds, for a COA the movant must show both “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).
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Although Mr. Mowery argues the merits of his claims, we need not consider the merits
aspect of the Slack test because he has not satisfied the procedural aspect.
Mr. Mowery objects that the district court clerk filed his document as a § 2255
motion. He states that by so doing, the clerk “place[d] the Appellant into the ‘rabbit
holes’ of procedure,” divested him of his constitutional rights to access the courts and to
due process, and “preclude[d] the presiding District Court Judge to be able to investigate
the claims properly for resolution, to keep pertinent information ‘swept under the rug’ of
justice.” Opening Br./Request for COA at 5.
Mr. Mowery misunderstands the situation. The clerk performed a merely
ministerial action in docketing the document as a § 2255 motion. In due course, the
district judge evaluated the filing and determined, in an exercise of judicial
decision-making, that it should be treated as an unauthorized successive § 2255 motion.
The clerk’s actions did not constrain the judge’s decision or have any effect on
Mr. Mowery’s rights.
Further, no reasonable jurist could debate the district court’s conclusion that
Mr. Mowery’s filing, ostensibly under § 3006A, was in reality a § 2255 motion.
“28 U.S.C. § 2255 is the exclusive remedy for a federal prisoner attacking the legality of
his detention.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (internal
quotation marks omitted). “A § 2255 motion is one claiming the right to be released
upon the ground that the sentence was imposed in violation of the Constitution or laws of
the United States . . . .” United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)
(internal quotation marks omitted). “It is the relief sought, not his pleading’s title, that
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determines whether the pleading is a § 2255 motion.” Id. at 1149. Mr. Mowery sought
to attack the validity of his conviction by asserting that his counsel’s performance
violated his statutory and constitutional rights. Therefore, his motion was, in essence, a
§ 2255 motion. The district court did not err in treating the motion as such.
Moreover, Mr. Mowery previously sought relief under § 2255, making this motion
an unauthorized successive § 2255 motion. “[I]f the prisoner’s pleading must be treated
as a second or successive § 2255 motion, the district court does not even have jurisdiction
to deny the relief sought in the pleading.” Id. at 1148. Accordingly, no reasonable jurist
could debate the district court’s decision to dismiss the filing for lack of jurisdiction.
The motion for leave to proceed on appeal without prepayment of costs or fees is
granted. But only prepayment of fees is waived, not the fees themselves. 28 U.S.C.
§ 1915(a)(1). A COA is denied and this matter is dismissed.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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