FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 14, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-7057
(D.C. Nos. 6:17-CV-00227-RAW &
WILLIAM EARL WRIGHT, 6:10-CR-00049-RAW-1)
(E.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before KELLY, LUCERO, and HARTZ, Circuit Judges.
_________________________________
William Earl Wright, a federal prisoner appearing pro se, filed a “Motion to
Correct a Plain Error,” which the district court treated as an unauthorized second or
successive 28 U.S.C. § 2255 motion and dismissed for lack of jurisdiction. To appeal
from that decision, Wright must obtain a certificate of appealability (COA). See United
States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). For the reasons that follow, we
deny a COA and dismiss the matter.
In August 2010, Wright pleaded guilty to one count of conspiracy to distribute
cocaine base. He was sentenced under the United States Sentencing Guidelines as a
*
This order is not binding precedent except under the doctrines of law of the case,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.
career offender based on two prior drug convictions. Consistent with the terms of his
plea agreement, Wright did not file a direct appeal.
In June 2016, Wright filed his first § 2255 motion (D.C. No. 6:16-cv-00258-
RAW), challenging his career-offender Guidelines sentence based on the Supreme
Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v.
United States, 136 S. Ct. 2243 (2016). The district court denied the motion. The court
first explained that the Johnson Court held that the residual clause of the Armed Career
Criminal Act (ACCA) was unconstitutionally vague, but Wright was not sentenced under
the ACCA’s residual clause. Instead, Wright was sentenced as a career offender under
the Guidelines based on two prior drug convictions. The court therefore concluded that
Wright was not entitled to sentencing relief under Johnson. The court next explained that
Wright could not rely on the Mathis decision for relief because it did not announce a new
rule of law and was therefore not retroactively applicable to cases on collateral review,
citing to this court’s decision in United States v. Taylor, 672 F. App’x 860 (10th Cir.
2016). Wright did not seek to appeal from the denial of his § 2255 motion.
In February 2017, Wright filed a motion for reconsideration, which the district
court treated as an unauthorized second or successive § 2255 motion and dismissed for
lack of jurisdiction. Wright did not seek a COA to appeal from that dismissal.
In June 2017, Wright filed a second § 2255 motion (D.C. No. 6:17-cv-00227-
RAW), which the district court dismissed as an unauthorized second or successive § 2255
motion. He did not seek a COA to appeal from that dismissal; instead, in August 2017,
Wright filed the underlying “Motion to Correct a Plain Error,” which the district court
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treated as an unauthorized second or successive 28 U.S.C. § 2255 motion and dismissed
for lack of jurisdiction.
Wright now seeks a COA1 to appeal from the dismissal of his motion. To obtain a
COA, Wright must show at a minimum 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). He has not made this showing.
A prisoner may not file a second or successive § 2255 motion unless he first
obtains an order from the circuit court authorizing the district court to consider the
motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district
court lacks jurisdiction to address the merits of a second or successive § 2255 motion.
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
Although Wright styled his pleading as a motion to correct a plain error, “[i]t is the
relief sought, not [the] pleading’s title, that determines whether the pleading is a § 2255
motion.” United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006). As we have
explained:
A § 2255 motion is one claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.
Id. at 1148 (internal quotation marks omitted).
In his motion to correct a plain error, Wright argued that he was erroneously
sentenced as a career offender, requested that his career-offender enhancement be
1
We construe Wright’s “Opening Pro se Brief” as a request for a COA.
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vacated, and asked the court to reduce his sentence from 153 months to 84 months. He
again asserted that he was entitled to relief under Mathis. His motion to correct a plain
error clearly sought to challenge his sentence, it was his third attempt to do so after his
initial § 2255 motion was denied, and he had not received authorization from this court to
file a successive § 2255 motion. In Wright’s request for a COA, he continues to argue
the merits of his request for sentencing relief and fails to adequately address how the
district court erred in dismissing his motion for lack of jurisdiction.
Given these circumstances, reasonable jurists could not debate the district court’s
decision to treat Wright’s motion as an unauthorized second or successive § 2255 motion
and to dismiss it for lack of jurisdiction. Accordingly, we deny Wright’s request for a
COA.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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