FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 18, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6114
(D.C. Nos. 5:18-CV-00171-F &
MICHAEL DWIGHT NORWOOD, 5:06-CR-00180-F-1)
(W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before BRISCOE, MATHESON, and MORITZ, Circuit Judges.
_________________________________
Michael Dwight Norwood, a federal prisoner appearing pro se, seeks a certificate
of appealability (COA) to appeal the district court’s order denying his motion for relief
under Fed. R. Crim. P. 36, which the district court construed as an unauthorized second
or successive motion attacking his sentence under 28 U.S.C. § 2255. Exercising
jurisdiction under 28 U.S.C. §§ 1291 and 2553(a), we deny the application for a COA
and dismiss this matter.
Norwood entered a guilty plea to three counts of distribution of methamphetamine
and one count of felon in possession of a firearm. He was sentenced to 360 months’
imprisonment on counts 1 and 2, life imprisonment on count 3, and 120 months’
This order is not binding precedent except under the doctrines of law of the case,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.
imprisonment on count 4, with all terms to run concurrently. Norwood appealed, and this
court affirmed his sentence.
Thereafter, Norwood began a steady campaign to obtain relief from his sentence
by filing motions to reduce his sentence under 18 U.S.C. § 3582(c)(2), or to vacate his
sentence under § 2255. These attempts were unsuccessful. Most recently, Norwood filed
a motion to “correct” his conviction under Fed. R. Crim. P. 36. The district court
determined that Norwood’s argument challenged the validity of his sentence, and
therefore construed his Rule 36 motion as a second or successive § 2255 motion filed
without authorization from this court. Norwood now seeks a COA to appeal from the
dismissal of his Rule 36 motion.
To obtain a COA, Norwood must show at a minimum 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). He has not made this showing. 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); id.
§ 2255(h). 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).
Although Norwood styled his pleading as a motion to correct his judgment of
conviction, “[i]t is the relief sought, not [the] pleading’s title, that determines whether the
pleading is a § 2255 motion.” United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir.
2006). In his Rule 36 motion, Norwood argued that the length of his sentence was in
2
error because his drug offenses should have been classified as Class C felonies instead of
Class A or B felonies, which in turn would have reduced the range of his sentence. This
argument attacks validity of sentence and thus qualifies as a § 2255 motion. See id. at
1148-49.
In his request for a COA, Norwood fails to adequately address how the district
court erred in construing his Rule 36 motion as second or successive and dismissing it for
lack of jurisdiction. Instead, citing Castro v. United States, 540 U.S. 375 (2003),
Norwood maintains that the court was required to notify him that it intended to
recharacterize the Rule 36 motion as a second or successive § 2255 motion and provide
him an opportunity to withdraw the motion. But the limitation in Castro “applies when a
court recharacterizes a pro se litigant’s motion as a first § 2255 motion.” Id. at 383. “If
the prisoner has filed once, any future motion will be subject to the same constraints
whether it is a second § 2255 motion or a third.” Nelson, 465 F.3d at 1149.
Reasonable jurists could not debate the district court’s decision to construe
Norwood’s Rule 36 motion as an unauthorized second or successive § 2255 motion and
to dismiss it for lack of jurisdiction. Accordingly, we deny Norwood’s request for a
COA and dismiss this matter. We grant his motion to proceed on appeal without
prepayment of costs or fees.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
3