FILED
United States Court of Appeals
Tenth Circuit
February 13, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-3312
v. (D.C. Nos. 5:11-CV-04065-SAC
& 5:04-CR-40001-SAC-2)
FELIPE BEDOLLA-IZAZAGA, (D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, MURPHY, and HARTZ, Circuit Judges.
Felipe Bedolla-Izazaga, a federal prisoner proceeding pro se, seeks to
appeal the district court’s dismissal of his most recent 28 U.S.C. § 2255 motion as
an unauthorized second or successive § 2255 motion. See 28 U.S.C. § 2255(h)
(placing restrictions on second or successive § 2255 motions and requiring circuit
court authorization to proceed in district court). We deny a certificate of
appealability (COA) and dismiss this proceeding.
*
This order is not binding precedent except under the doctrines of law of the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.
The court sentenced Mr. Bedolla-Izazaga to 360 months of imprisonment
for drug-related offenses. He did not appeal, but since has sought relief from his
convictions in several filings: a § 2255 motion, which the district court denied;
a motion seeking reconsideration of the denial of the § 2255 motion, which the
district court transferred to this court as requiring authorization under § 2255(h),
see In re Bedolla-Izazaga, No. 10-3094 (10th Cir. June 17, 2010) (unpublished
order denying remand and authorization to proceed in district court); and a motion
for a writ of audita querela, which the district court denied and this court
affirmed, Bedolla-Izazaga v. United States, 413 F. App’x 20, 21 (10th Cir. 2011).
Mr. Bedolla-Izazaga most recently filed a new § 2255 motion, in which he
asserted that his counsel was ineffective for failing to file a notice of appeal, the
government improperly divided a single offense into multiple charges, the
government failed to show that the substance in question was
D-methamphetamine rather than L-methamphetamine, and the jury instructions
relieved the government of its burden of proof. The district court held that the
new motion was attempting to assert unauthorized second or successive § 2255
claims and dismissed it for lack of jurisdiction, see In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008) (per curiam).
Mr. Bedolla-Izazaga now requests a COA from this court. See United
States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). To obtain one, he must
show both “that jurists of reason would find it debatable whether the petition
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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).
The new § 2255 motion undoubtedly seeks to challenge
Mr. Bedolla-Izazaga’s convictions. Because he already has pursued relief from
his convictions under § 2255, his new § 2255 motion is second or successive and
subject to the restrictions of § 2255(h). Therefore, he was required to obtain this
court’s authorization to file his new § 2255 motion. In the absence of such
authorization, the district court did not err in dismissing the motion for lack of
jurisdiction. See Cline, 531 F.3d at 1251. No reasonable jurist would find any of
these matters debatable.
A COA is DENIED and this matter is DISMISSED. We also DENY
Mr. Bedolla-Izazaga’s motion to proceed on appeal without prepayment of costs
or fees. The district court and this court have both explained to
Mr. Bedolla-Izazaga that second or successive § 2255 motions are allowed only in
very limited circumstances that are spelled out in § 2255(h). His new § 2255
motion indisputably seeks to challenge his criminal convictions and was filed
without this court’s authorization. On appeal, rather than addressing why the
district court might have erred in dismissing his motion as an unauthorized second
or successive § 2255 motion, Mr. Bedolla-Izazaga reargues the merits of his
underlying claims of error and seeks vacatur of his convictions. In short, he has
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failed to advance “a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised” in this proceeding. DeBardeleben v. Quinlan,
937 F.2d 502, 505 (10th Cir. 1991).
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
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