Appellate Case: 23-3158 Document: 010110979768 Date Filed: 01/08/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 8, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-3158
(D.C. Nos. 6:23-CV-01117-JWB &
BRUCE SEARS, 6:04-CR-10174-JWB-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY *
_________________________________
Before MATHESON, KELLY, and MORITZ, Circuit Judges.
_________________________________
Before a federal inmate can file a second or successive 28 U.S.C. § 2255 motion,
he or she must obtain prior authorization from the appropriate court of appeals.
§ 2255(h). If the inmate files a second or successive § 2255 motion without
authorization, the district court lacks jurisdiction to hear it. In re Cline, 531 F.3d 1249,
1251 (10th Cir. 2008). But not every § 2255 motion filed second or later in time will be
considered second or successive. See Panetti v. Quarterman, 551 U.S. 930, 944 (2007).
If a claim was not ripe when the inmate’s first § 2255 proceedings concluded, for
*
This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 23-3158 Document: 010110979768 Date Filed: 01/08/2024 Page: 2
example, the claim will not be considered second or successive if the inmate asserts it
once it ripens. See In re Weathersby, 717 F.3d 1108, 1110 (10th Cir. 2013).
Bruce Sears is serving a life sentence in federal prison for committing a serious
violent felony with at least two prior convictions for serious violent felonies. See
18 U.S.C. § 3559(c)(1). He recently filed a § 2255 motion, arguing that his Kansas
robbery convictions (used as predicate convictions for his life sentence) do not qualify as
serious violent felonies. He acknowledged that he had already sought relief through an
earlier § 2255 motion, but he argued that his current claim did not become ripe until the
Supreme Court issued its decision in Borden v. United States, 141 S. Ct. 1817 (2021). 1
For that reason, he concluded, his motion should not be considered second or successive.
The district court rejected Mr. Sears’s argument that his claim was not ripe until
the decision in Borden came down. Treating Mr. Sears’s motion as an unauthorized
second or successive one, the district court dismissed it for lack of jurisdiction.
Mr. Sears cannot appeal without a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(B). To obtain one, he must show that reasonable jurists would find it
debatable whether the district court’s procedural ruling was correct. 2 See Slack v.
McDaniel, 529 U.S. 473, 478 (2000).
1
Borden held that an offense does not count as a violent felony under the Armed
Career Criminal Act if it requires a mens rea of mere recklessness. 141 S. Ct. at
1821–22.
Mr. Sears represents himself, so we construe his filings liberally. See Hall v.
2
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2
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The district court’s ruling is beyond debate. What makes a claim unripe is that its
factual basis does not yet exist, not that caselaw does not yet support the claim. See
United States v. Williams, 790 F.3d 1059, 1068–69 (10th Cir. 2015). Mr. Sears’s current
claim asserts that his Kansas robbery convictions do not qualify as serious violent
felonies and so cannot support a mandatory life sentence. That claim became ripe when
the district court imposed the life sentence. 3 Because Mr. Sears’s claim was ripe when he
filed his first § 2255 motion, the district court correctly treated his latest motion as an
unauthorized second or successive one.
We deny Mr. Sears’s application for a certificate of appealability. We grant his
motion to proceed without prepaying costs or fees. We dismiss this matter.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
3
Mr. Sears’s motion also claimed (with less discussion) that the Kansas robbery
convictions should not expose him to the career-offender provision of the sentencing
guidelines. Our analysis of his primary claim (challenging his mandatory life sentence)
also applies to his claim that he does not qualify as a career offender, for both claims
became ripe when the district court imposed the sentence.
3