FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 4, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3268
(D.C. Nos. 2:19-CV-02530-KHV &
MENDY READ-FORBES, 2:12-CR-20099-KHV-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY ∗
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and HOLMES, Circuit Judges.
_________________________________
Mendy Read-Forbes, a federal prisoner proceeding through counsel, seeks a
certificate of appealability (COA) to appeal the district court’s order dismissing her
28 U.S.C. § 2255 motion as an unauthorized second or successive § 2255 motion for lack
of jurisdiction. We deny a COA and dismiss this matter.
Ms. Read-Forbes pleaded guilty to one count of conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(a)(3)(B). She was sentenced to 240 months’
imprisonment. Upon the government’s motion, we enforced the appeal waiver in her
∗
This order is not binding precedent except under the doctrines of law of the case,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.
plea agreement and dismissed her direct appeal. Ms. Read-Forbes next filed her first
§ 2255 motion based on ineffective assistance of counsel. The district court denied the
motion, and we denied a COA. In 2018, Ms. Read-Forbes sought authorization from this
court to file a second or successive § 2255 motion in district court, relying on newly
discovered evidence that privileged attorney-client communications were recorded while
she was an inmate at Leavenworth prison in violation of her Sixth Amendment rights.
We denied authorization because she failed to show “this evidence, ‘if proven and viewed
in light of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found her guilty of the
offense.’” Order at 2, No. 18-3146, In re Read-Forbes (10th Cir. July 26, 2018)
(alteration omitted) (quoting 28 U.S.C. § 2255(h)(1)). On September 9, 2019, she filed
the underlying § 2255 motion in district court, again arguing that the improper recording
of privileged attorney-client communications violated her Sixth Amendment rights. The
district court determined that the motion was an unauthorized second or successive
§ 2255 motion and dismissed it for lack of jurisdiction.
Ms. Read-Forbes now seeks a COA under 28 U.S.C. § 2253(c) to appeal from that
dismissal. “A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Because the district court dismissed her petition on procedural grounds, to obtain a COA
Ms. Read-Forbes must demonstrate 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
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procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We need not reach the
constitutional component of this standard since it is apparent Ms. Read-Forbes cannot
meet her burden on the procedural one. See id. at 485.
A prisoner may not file a second or successive § 2255 motion without
authorization from this court. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). The district
court lacks jurisdiction to consider the merits of a second or successive § 2255 motion
absent authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
In her motion filed in district court, Ms. Read-Forbes claimed the Kansas U.S.
Attorney’s Office violated her Sixth Amendment rights by improperly obtaining
32 attorney-client calls between her and her attorneys. This evidence was newly
discovered as part of another criminal matter related to allegations of improper recordings
at Leavenworth prison. In that matter, Chief Judge Robinson made findings in
August 2019 regarding the government’s possession of recorded phone calls between
Ms. Read-Forbes and her attorneys. In her motion, Ms. Read-Forbes acknowledged that
she already raised this issue in her unsuccessful motion for authorization to file a
successive motion. But her most recent motion seems to include additional
attorney-client calls.
The district court recognized that this new evidence might support a legal
challenge that the government violated her Sixth Amendment rights. But “[b]ecause
[Ms. Read-Forbes] did not receive authorization from the Tenth Circuit” to file her
§ 2255 motion, Aplt. App. at 84, the district court dismissed the motion for lack of
jurisdiction and denied a COA.
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In her application to this court, Ms. Read-Forbes fails to even address the standard
for issuance of a COA, let alone apply it. She instead devotes her briefing to arguing the
merits of her Sixth Amendment claim and attempting to circumvent the applicable
standard by asking for relief through other means, including declaratory relief pursuant to
28 U.S.C. §§ 2201(a) and 2202; a writ of audita querela pursuant to the All Writs Act,
28 U.S.C. § 1651; and “more traditional” habeas relief pursuant to 28 U.S.C. § 2241,
Aplt. Opening Br. at 24. Ms. Read-Forbes did not present these avenues of relief to the
district court within the motion under review, so we decline to consider them for the first
time in her COA application. 1 See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir.
2012) (stating our general rule that we will not consider issues for the first time on appeal
absent extraordinary circumstances). Nor do we comment on her ability to obtain
authorization under § 2255(h) to file a successive § 2255 motion based on any additional
newly discovered evidence; she has not sought such authorization from this court under
§ 2255(h)(2).
We conclude that reasonable jurists could not debate that the district court was
correct in its procedural ruling that Ms. Read-Forbes’s motion was an unauthorized
second or successive § 2255 motion over which it lacked jurisdiction, and
1
We note that Ms. Read-Forbes separately filed a “Petition for Writ of Audita
Querela or Other Appropriate Relief Pursuant to the All Writs Act 28 U.S.C. 1651” in the
district court, which remains pending. She filed that petition after she filed the § 2255
motion that underlies this matter. The district court has stayed that motion pending our
decision in this appeal and will consider her claims in the first instance.
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Ms. Read-Forbes has not offered any argument to the contrary. Accordingly, we deny a
COA and dismiss this matter.
We grant Ms. Read-Forbes’s motion to proceed without prepayment of costs or
fees. Nevertheless, she is required to pay all filing and docketing fees to the Clerk of the
District Court. Only prepayment of fees is waived, not the fees themselves. See
28 U.S.C. § 1915(a)(1). We deny her motion to seal as moot because the court seals
motions to proceed without prepayment of costs or fees as a matter of course.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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