FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 19, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-4152
(D.C. No. 2:03-CR-00882-TC-1)
JAMES JOSEPH WILSON, (D. Utah)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before O’BRIEN, EBEL, and TYMKOVICH, Circuit Judges.
James Joseph Wilson, a federal prisoner proceeding pro se, seeks to appeal
the district court’s dismissal for lack of jurisdiction of his motion to recall the
mandate in his criminal case. He also seeks to appeal the district court’s denial of his
Fed. R. Civ. P. 59(e) motion to alter or amend that dismissal. We deny him a
certificate of appealability (COA) and dismiss this proceeding.
In 2004, Mr. Wilson pleaded guilty to one count of bank robbery in violation
of 18 U.S.C. § 2113(a) and (d). The district court found that he was a career offender
and sentenced him to 188 months in prison, to be followed by a three-year term of
*
This order is not binding precedent except under the doctrines of law of the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.
supervised release. Since that time, Mr. Wilson has made several attempts to attack
his conviction and sentence.
In 2005, Mr. Wilson filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255, in which he argued that he was unconstitutionally
sentenced under 18 U.S.C. § 924(c). The district court rejected his arguments and
denied his motion. He did not appeal from this denial.
In 2008, he filed a “motion for resentencing,” seeking to modify his term of
imprisonment pursuant to 18 U.S.C. § 3582(c). The district court denied the motion,
noting that § 3582(c) only permits resentencing if the defendant’s conviction
involved crack cocaine. The district court also denied his subsequent motion to alter
or amend its judgment.
In 2010, Mr. Wilson filed another § 2255 motion, in which he challenged his
sentencing classification as a career offender. The district court determined that the
motion was second or successive and that he had failed to demonstrate that he had
authorization from this court to file it. Accordingly, it transferred the motion to this
court. We dismissed the transferred motion after Mr. Wilson failed to file the
required motion for authorization to file a successive § 2255 motion or to seek
remand to the district court.
In 2012, Mr. Wilson filed the present “Motion to Recall the Mandate of This
Court’s Judgment in Defendant’s Case.” R., Vol. 2 at 196. He argued that under an
amendment to the Sentencing Guidelines, the “career offender” provision did not
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apply to him, that his sentence was incorrect, that it should be vacated, and that he
should be re-sentenced. The district court concluded that “it is clear that Mr. Wilson
is again seeking a reduction of his sentence pursuant to 28 U.S.C. § 2255.” Id.
at 210. Accordingly, it dismissed the successive petition for lack of jurisdiction.
Mr. Wilson filed a motion to alter or amend this judgment, which the district court
denied. He then appealed from both the dismissal of his motion to recall the
mandate, and the denial of his motion to alter or amend the judgment.
Mr. Wilson must obtain a COA to pursue an appeal. United States v. Harper,
545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling rests on
procedural grounds, 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).
In his COA application, Mr. Wilson argues the merits of his legal issues, but
does not articulate any reason why his motion should not be subject to the
authorization requirements of § 2255(h). We have reviewed Mr. Wilson’s motion
and his application for COA and conclude that reasonable jurists could not debate the
district court's conclusion that his motion to recall the mandate requires prior circuit-
court authorization. Because he lacked such authorization, the district court properly
dismissed it for lack of jurisdiction. Finally, all of this being so, the district court did
not err in denying Mr. Wilson’s Rule 59(e) motion.
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Accordingly, we deny a COA and dismiss this matter. We also deny
Mr. Wilson’s motion for remand.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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