FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 22, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-6235
(D.C. Nos. 5:09-CV-01063-F &
MICHAEL DWIGHT NORWOOD, 5:06-CR-00180-F-1)
(D. Kan.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before TYMKOVICH, Chief Judge, PHILLIPS and MORITZ, Circuit Judges.
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Michael Dwight Norwood, proceeding pro se, seeks a certificate of appealability
(COA) to challenge the district court’s determination that his “Motion to Reconsideration
Federal Rule of Civil. [sic] P. Rule 60(b)(6) and Recall the Court Order” is an
unauthorized second or successive § 2255 motion, over which the district court lacks
jurisdiction. See 28 U.S.C. § 2253(c)(1)(B). We deny a COA and dismiss this matter.
After pleading guilty, Mr. Norwood was convicted of drug and firearm offenses in
2006; the conviction and sentence were affirmed by this court in 2007, and the Supreme
Court denied a petition for writ of certiorari. Mr. Norwood filed a pro se motion pursuant
to 28 U.S.C. § 2255 in 2009, claiming ineffective assistance of counsel in connection
*
This order is not binding precedent except under the doctrines of law of the case,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.
with his guilty plea, at sentencing, and on appeal. The district court denied the motion
and declined to issue a COA; in 2012 this court denied the application for COA and
dismissed the matter, and the Supreme Court denied the petition for writ of certiorari. In
2013, Mr. Norwood filed a motion under Fed. R. Civ. P. 60 for relief from judgment,
which the district court construed in part as under Rule 60 and denied relief, and
dismissed in part for lack of jurisdiction as an unauthorized successive motion. This
court affirmed the substantive denial and denied a COA on the jurisdictional dismissal,
and again the Supreme Court denied certiorari. All of which brings us to the proceedings
underlying the current appeal.
In September 2017, Mr. Norwood filed yet another motion to reopen and vacate
his § 2255 dismissal, again under Rule 60(b). The district court again found the motion
to be a “mixed” motion and, on October 4, 2017, the district court denied part of the
motion as meritless under Rule 60, and dismissed part of the motion for lack of
jurisdiction as an unauthorized successive § 2255 motion. Shortly thereafter, on October
23, 2017, Mr. Norwood filed a Rule 60(b) motion to reconsider the October 4 ruling. The
district court dismissed the October 23 motion as an unauthorized successive § 2255
motion because the motion “asserts or reasserts a federal basis for relief from defendant’s
underlying conviction.” R., Vol. 1 at 54. Mr. Norwood now seeks to appeal the October
25 order and judgment.
Because his § 2255 motion was dismissed on procedural grounds, Mr. Norwood
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
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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.
at 484-85.
Even reviewing Mr. Norwood’s motion liberally, 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. Norwood has not sought, and this court has not granted, the required authorization.
We deny a COA and dismiss this matter.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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