FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 11, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 20-1088
v. (D.C. Nos. 1:20-CV-00378-CMA &
1:07-CR-00354-CMA-1)
JOHNNY SCOTT WARREN, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY and McHUGH, Circuit Judges.
_________________________________
Johnny Scott Warren seeks a certificate of appealability (COA) to appeal from the
district court’s dismissal of his 28 U.S.C. § 2255 motion as an unauthorized successive
§ 2255 motion.1 We deny a COA and dismiss this matter.
Mr. Warren was convicted of narcotics and firearms violations and sentenced to
240 months’ imprisonment. After this court affirmed, see United States v. Warren,
566 F.3d 1211, 1218 (10th Cir. 2009), Mr. Warren filed numerous unsuccessful collateral
*
This order is not binding precedent except under the doctrines of law of the case,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.
1
This court issued an order questioning whether this appeal falls under a previous
sanctions order against Mr. Warren, see In re Warren, No. 15-1145 (10th Cir. May 21,
2015) (unpublished order), and the question was referred to this panel. We conclude that
the sanctions order does not extend to this appeal.
challenges, including multiple § 2255 motions and multiple motions for authorization to
file second or successive § 2255 motions. This matter concerns a February 2020 § 2255
motion arguing that Mr. Warren’s narcotics conviction is in violation of his Fourth, Fifth,
and Sixth Amendment rights as the product of an unconstitutional search, ineffective
assistance of trial and appellate counsel, and errors by this court in his direct appeal. The
district court held that the filing was an unauthorized successive § 2255 motion and
declined to transfer the filing to this court for authorization, instead dismissing it for lack
of jurisdiction.
To appeal, Mr. Warren must obtain a COA. See United States v. Harper, 545 F.3d
1230, 1233 (10th Cir. 2008). That requires him to 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). In this case, the
latter part of the test is determinative: no reasonable jurist could debate the district
court’s procedural decision to dismiss the motion for lack of jurisdiction.
Mr. Warren is well aware that, having already pursued relief under § 2255, he
must obtain this court’s authorization before filing another § 2255 motion in the district
court. See 28 U.S.C. § 2255(h). He did not do so, and therefore the district court lacked
jurisdiction to consider the motion. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.
2008) (per curiam). Mr. Warren’s assertion that the restrictions on successive § 2255
motions are an unconstitutional suspension of the writ of habeas corpus is meritless.
2
See Felker v. Turpin, 518 U.S. 651, 664 (1996); Hale v. Fox, 829 F.3d 1162, 1176
(10th Cir. 2016).
We grant Mr. Warren’s motion to proceed without prepayment of costs or fees.
But because no reasonable jurist could debate the district court’s decision to dismiss
Mr. Warren’s successive § 2255 motion for lack of jurisdiction, see Cline, 531 F.3d
at 1251, or its decision to dismiss rather than to transfer the filing to this court for
authorization, see id. at 1252, we deny a COA and dismiss this matter.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
3