FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 28, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6190
(D.C. Nos. 5:09-CV-01063-F &
MICHAEL DWIGHT NORWOOD, 5:06-CR-00180-F)
(W.D. Okla.)
Defendant - Appellant.
–––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6204
(D.C. Nos. 5:18-CV-01083-F &
MICHAEL DWIGHT NORWOOD, 5:06-CR-00180-F-1)
(W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before BRISCOE, EID, and CARSON, Circuit Judges.
_________________________________
Michael Dwight Norwood, a federal prisoner appearing pro se, seeks a certificate
of appealability (COA) to appeal from district court decisions in two separate appeals. In
This order is not binding precedent except under the doctrines of law of the case,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.
No. 18-6190, he seeks a COA to appeal from the district court’s order dismissing his
Fed. R. Civ. P. 60(b) motion. In No. 18-6204, he seeks a COA to appeal from the district
court’s order dismissing his 28 U.S.C. § 2255(f)(4) motion. Exercising jurisdiction under
28 U.S.C. §§ 1291 and 2253(a), we deny the applications for a COA and dismiss both of
these matters.
In 2006, Mr. Norwood entered a guilty plea to three counts of distribution of
methamphetamine and one count of being a 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’ imprisonment on count 4, all to run concurrently. Mr. Norwood
appealed, and this court affirmed his sentence.
In 2009, Mr. Norwood filed his first § 2255 motion, arguing that he received
ineffective assistance of counsel at the time he entered his plea, at sentencing, and on
appeal. The district court denied the motion, and we denied Mr. Norwood’s request for a
COA. Since that time, Mr. Norwood has continued to try to attack his sentence, but his
attempts have all been unsuccessful.
On October 12, 2018, Mr. Norwood filed a motion he styled “True Motion
Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure Claiming a Right to Relief
from the District Court’s Order and Judgment in a 28 U.S.C. § 2255 Case; Presenting
Defense of Extraordinary Circumstances.” The district court concluded that the
Rule 60(b) motion was an unauthorized second or successive 28 U.S.C. § 2255 motion
and dismissed it for lack of jurisdiction. In the same order, the district court denied a
COA.
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On November 2, Mr. Norwood filed a motion he styled “Motion Pursuant to
28 U.S.C. § 2255(f)(4) for Relief from a Conviction Obtained in Violation of the
Constitution and Laws of the Unite[d] States; Presenting Defense of Actual Innocence
Under 21 U.S.C. § 841(b)(1)(B).” Because Mr. Norwood filed this successive § 2255
motion without the required authorization from this court, the district court dismissed it
for lack of jurisdiction. The district court also denied a COA.
Mr. Norwood now seeks a COA from this court to appeal from these two district
court decisions. To obtain a COA, he must show 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).
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).
18-6190
The Supreme Court has explained that a Rule 60(b) motion should be construed as
a habeas petition if it “attacks the federal court’s previous resolution of a claim on the
merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (emphasis omitted). But a
Rule 60(b) motion is not a successive petition if it “attacks, not the substance of the
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federal court’s resolution of a claim on the merits, but some defect in the integrity of the
federal habeas proceedings.” Id.1
In his Rule 60(b) motion, Mr. Norwood argued that the district court erred in
enhancing his sentence for being a leader or organizer under § 3B1.1 of the United States
Sentencing Guidelines. He asserted that the district court’s ruling was a “defect in the
integrity of the proceedings” because it “fails to point to any law in support of applying
§ 3B1.1 to an offense that involved no participants, and applies its findings arbitrar[ily]
and capriciously contrary to the due process of law.” 18-6190 R. at 29.
In his first § 2255 motion, Mr. Norwood had argued that his trial counsel had been
ineffective for failing to challenge the § 3B1.1 leadership-role enhancement. The district
court had rejected the argument because Mr. Norwood could not establish that counsel’s
performance was deficient. The district court noted that counsel had objected to the
enhancement in the sentencing memorandum he filed on behalf of Mr. Norwood, but the
court had found that the four-level enhancement was proper.
In determining that Mr. Norwood’s Rule 60(b) motion should be treated as a
successive § 2255 motion, the district court explained that “[t]he motion is challenging
the court’s previous determination, in adjudicating defendant’s ineffective assistance of
counsel claim, that the leadership-role enhancement was proper and is seeking relief from
his sentence on the basis that the court erred in applying the leadership-role
1
Although the Supreme Court in Gonzalez was considering when a post-judgment
motion should be treated as a successive habeas petition under 28 U.S.C. § 2254,
Gonzalez, 545 U.S. at 526, we have applied the same analysis to § 2255 motions, United
States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006).
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enhancement.” Id. at 33. The court further explained that “[d]espite his arguments,
defendant is not challenging ‘some defect’ in the integrity of the prior § 2255
proceedings.” Id. Because Mr. Norwood had not received authorization from this court
to file a successive § 2255 motion, the district court dismissed it for lack of jurisdiction.
In his COA application, Mr. Norwood asserts that he submitted “a motion
pursuant to Rule 60(b) . . . seeking to reopen his 28 U.S.C. § 2255 Proceedings on the
grounds that the Court’s ruling on the Motion, specifically his claim . . . against
application of a leadership role . . . was wrong.” 18-6204 COA App. at 1.2 He further
asserts that “[t]he issue presented [in his Rule 60(b) motion] sought to have the court’s
application of the leader and organizer enhancement removed from [his] offense of
conviction.” Id. at 2. We agree with the district court that although Mr. Norwood seeks
to characterize his Rule 60(b) motion as asserting a defect in the proceedings, he is
instead challenging the district court’s previous resolution of one of his § 2255 claims on
the merits. Given these circumstances, reasonable jurists could not debate the district
court’s decision to construe his Rule 60(b) motion as a second or successive § 2255
motion and to dismiss it for lack of jurisdiction.
18-6204
In the § 2255 motion filed November 2, 2018, Mr. Norwood challenged the
validity of his guilty plea, arguing that it was not knowing or voluntary because it failed
2
Upon review of the COA applications filed in 18-6190 and 18-6204, it appears
that the applications have been filed in the opposite case numbers. Although the COA
application quoted above was filed in 18-6204, it is referring to the court’s disposition of
Mr. Norwood’s Rule 60(b) motion, which is the subject of 18-6190.
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to include “the fact of drug quantity.” 18-6204 R. at 2. The district court dismissed
Mr. Norwood’s successive § 2255 motion for lack of jurisdiction because he had not
received authorization to file it.
In his COA application, Mr. Norwood contends that the district court’s procedural
ruling is debatable because he has newly discovered evidence of actual innocence3 and
McQuiggin v. Perkins, 569 U.S. 383 (2013), entitles him to a ruling on the merits of that
claim. But McQuiggin held that a claim of actual innocence can overcome the expiration
of the statute of limitations for an untimely first habeas application. See id. at 396-97.
The decision did not alter any of the requirements for bringing a second or successive
habeas application or § 2255 motion. See id. at 395-97.
Mr. Norwood filed a successive § 2255 motion without the required authorization
from this court. He has failed to show that reasonable jurists could debate the district
court’s procedural ruling dismissing his successive § 2255 motion for lack of jurisdiction.
For the foregoing reasons, we deny a COA in both 18-6190 and 18-6204 and
dismiss these matters. We also deny Mr. Norwood’s request to proceed without
prepayment of costs or fees in these matters. Finally, we note that it appears the
respective COA applications in these two matters were filed in the incorrect appeal
3
Specifically, he argued it was “a newly discovered fact that [he] did not admit the
elements of an aggravating drug offense.” 18-6204 R. at 6. He asserted that he
“discovered the facts in support of his actual innocence and unconstitutional guilty plea
claim, December 2017, when a family member, while reviewing the record of the case,
discovered the petition to enter guilty plea, which failed to charged[sic] the fact of drug
quantity.” Id. at 3.
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numbers. We direct the Clerk to correct the dockets in these appeals by filing in 18-6190
the COA application currently filed in 18-6204 (filed on January 22, 2019), and filing in
18-6204 the COA application currently filed in 18-6190 (filed on February 6, 2019).
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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