FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 31, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3269
(D.C. Nos. 5:19-CV-03166-KHV &
LAMONT T. DRAYTON, 2:10-CR-20018-KHV-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
_________________________________
Lamont T. Drayton, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal from the district court’s dismissal in part and denial in part
of his most recent unauthorized second or successive habeas petition brought under
28 U.S.C. § 2255. We deny a COA and dismiss this matter.
Background
Drayton pleaded guilty to one count of possession of a firearm in furtherance of a
federal drug trafficking crime, in violation of 18 U.S.C. § 924(c), and one count of
conspiracy to maintain drug-involved premises within 1,000 feet of a public elementary
This order is not binding precedent except under the doctrines of law of the case,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.
school, in violation of 21 U.S.C. §§ 846, 856(a), 860(a), and 18 U.S.C. § 2. Consistent
with the sentence the parties proposed in the plea agreement, the district court sentenced
Drayton to 240 months in prison and five years of supervised release. He appealed his
sentence, but we dismissed the appeal based on his agreement to waive his right to appeal
the proposed sentence. United States v. Drayton, 434 F. App’x 760 (10th Cir. 2011)
(per curiam).
Drayton then filed a motion to vacate his sentence under § 2255, claiming his
counsel coerced him into pleading guilty and was ineffective for failing to seek
suppression of evidence discovered after law enforcement placed a GPS tracker on his
car. The district court rejected the claims on the merits, overruled the motion, and denied
a COA. We denied a COA and dismissed the appeal. United States v. Drayton,
541 F. App’x 858, 861 (10th Cir. 2013).
In 2016 and 2018, we denied Drayton authorization to file second or successive
§ 2255 motions challenging his convictions and sentence under Johnson v. United States,
135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the
Supreme Court invalidated language in portions of two statutes defining “violent
felonies” and “crime of violence” as unconstitutionally vague. In both orders, we
explained that because Drayton was convicted of possessing a firearm during and in
furtherance of a drug trafficking crime, see § 924(c)(1)(A)(i), not a crime of violence, the
definition of “crime of violence” in the statutory section he challenged, § 924(c)(3)(B), is
irrelevant to his conviction and sentence. In re Drayton, No. 18-3093, slip op. at 2-3
(10th Cir. May 8, 2018) (unpublished order) (denying authorization to raise Dimaya
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claim); In re Drayton, No. 16-3125, slip op. at 2-3 (10th Cir. June 9, 2016) (unpublished
order) (denying authorization to raise Johnson claim).
In November 2018, the district court granted Drayton’s and the government’s joint
motion to reduce his sentence to 203 months based on a reduced Guidelines sentencing
range. See 18 U.S.C. § 3582(c)(2).
Then, in January 2019, Drayton filed a § 2255 motion seeking a sentence
reduction under 18 U.S.C. § 3582(c)(1)(B) and § 403(a) of the First Step Act of 2018,
Pub. L. No. 115-391, 132 Stat. 5194, 5221-22 (2018) (FSA), which prohibits applying the
25-year mandatory term of imprisonment for a second or subsequent § 924(c) conviction
if the first § 924(c) conviction was not final when the second or subsequent offense was
committed. The court concluded that the motion was an unauthorized second or
successive § 2255 motion, dismissed it for lack of jurisdiction, and denied a COA. In
addition to dismissing the motion for lack of jurisdiction, the district court also explained
that Drayton was not entitled to relief under § 403 because (1) he pleaded guilty to a
single § 924(c) offense and did not receive an enhanced sentence based on a prior
§ 924(c) conviction; and (2) the FSA does not apply retroactively, see FSA at § 403(b).
Drayton did not seek a COA from this court to appeal that ruling.
About six months later, Drayton filed the two motions at issue here. In the first
motion, which he captioned as a motion under 28 U.S.C. § 2241, Fed. R. Civ. P. 59, and
the FSA (“primary motion”), he again sought a reduction in his sentence under the FSA.
He claimed the FSA is a new retroactively applicable rule of law that changed the
sentencing laws applicable to his offense and undermined the basis for his plea—the
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advisements from plea counsel and the government that, if convicted of two § 924(c)
counts, he would be subject to a mandatory 25-year consecutive sentence. He also
claimed counsel was ineffective for not advising him of the correct penalties under
§ 924(c). In addition to the primary motion, Drayton filed a motion to amend the primary
motion in which he maintained that he was entitled to relief under United States v. Davis,
139 S. Ct. 2319 (2019). In Davis, the Supreme Court held that the residual clause of the
crime of violence definition in § 924(c)(3)(B) is void for vagueness. See id. at 2336.
Because the primary motion reasserted the claims Drayton raised in his January
2019 motion, the district court construed it as an unauthorized second or successive
§ 2255 motion. See United States v. Baker, 718 F.3d 1204, 1206 (10th Cir. 2013)
(holding that “[a] prisoner’s post-judgment motion”—however styled—“is treated like a
second-or-successive § 2255 motion . . . if it asserts or reasserts claims of error in the
prisoner’s conviction.”).1 So construed, the court dismissed the motion for lack of
jurisdiction and denied a COA. The court then overruled the motion to amend,
concluding that Drayton was not entitled to relief under Davis because he was convicted
of possessing a firearm during and in furtherance of a drug trafficking crime, not a crime
of violence, so § 924(c)(3)(B)’s crime of violence definition did not affect his sentence.
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Drayton characterized his motion as a Rule 59 motion, but because it was
untimely under Rule 59(e), the district court treated it as a Rule 60 motion. Either way,
the court properly construed the motion as a § 2255 motion. See United States v.
Pedraza, 466 F.3d 932, 934 (10th Cir. 2006) (treating Rule 59 motion as a second § 2255
motion); Gonzalez v. Crosby, 545 U.S. 524, 530, 532 (2005) (treating Rule 60(b) motion
as a second habeas petition).
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Discussion
To appeal the district court’s order, Drayton must obtain a COA. See 28 U.S.C.
§ 2253(c)(1)(B); United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). We
liberally construe his pro se opening brief and application for a COA. See Hall v. Scott,
292 F.3d 1264, 1266 (10th Cir. 2002).
1. Order Dismissing Primary Motion for Lack of Jurisdiction
The district court dismissed Drayton’s primary motion on procedural grounds. To
obtain a COA as to that ruling, he 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). We need not
address the constitutional question if we conclude that reasonable jurists would not
debate the district court’s resolution of the procedural one. Id. at 485.
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). To obtain authorization, the
prisoner’s proposed claims must satisfy one of the gatekeeping provisions in § 2255(h),
and 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).
In his application for a COA, Drayton does not dispute that he previously filed a
§ 2255 motion and that he did not obtain authorization from this court to file another one.
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Nor does he dispute the correctness of the district court’s treatment of his primary motion
as a second or successive § 2255 motion, or otherwise explain how the district court erred
in its procedural ruling dismissing that motion for lack of jurisdiction. Instead, he argues
the merits of his underlying claims. Because Drayton has not shown that jurists of reason
would debate whether the district court’s procedural ruling was correct, we deny a COA.
2. Order Overruling Motion to Amend
In his motion to amend, Drayton sought relief under Davis, which was decided
long after he filed his first § 2255 motion and several months after he filed his January
2019 motion. Because Davis created a new substantive rule that is retroactively
applicable on collateral review, a Davis claim satisfies the gatekeeping provision in
§ 2255(h)(2) where, as here, the petitioner could not have raised the claim in his first
§ 2255 motion. In re Mullins, 942 F.3d 975, 979 (10th Cir. 2019). The district court thus
did not dismiss Drayton’s motion to amend for lack of jurisdiction, but as noted above, it
rejected his Davis claim on the merits.
We will grant a COA to appeal the denial of a § 2255 claim on the merits only if
the petitioner demonstrates that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
Drayton cannot make that showing because, as we explained in our 2016 and 2018 orders
denying authorization to file second or successive § 2255 motions raising Johnson and
Dimaya claims, he was not convicted of possessing a firearm during and in relation to a
crime of violence, so the definition of “crime of violence” in § 924(c)(3)(B) did not affect
his sentence. Accordingly, we deny a COA.
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Conclusion
For the foregoing reasons, we deny a COA and dismiss this matter. We grant
Drayton’s motion for leave to proceed on appeal without prepayment of costs and fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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