United States v. Perkins ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 31, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-7067
(D.C. Nos. 6:19-CV-00249-RAW &
JIMMIE ALLEN PERKINS, 6:03-CR-00060-RAW-SPS-2)
(E.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
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Jimmie Allen Perkins filed a second or successive motion under 28 U.S.C. § 2255
in the district court that had not been authorized by this court. The district court
dismissed the motion for lack of jurisdiction. We deny a certificate of appealability
(“COA”) and dismiss the matter.
In 2003, Perkins was convicted of several federal crimes including possession of a
firearm during a crime of violence, in violation of 18 U.S.C. § 924(c).1 The district court
denied his first § 2255 motion as untimely. He filed a second § 2255 motion in which he

This order is not binding precedent except under the doctrines of law of the case,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
Perkins was also convicted of conspiracy to possess a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(o).
sought to challenge his § 924(c) conviction based upon the Supreme Court’s ruling in
United States v. Davis, 139 S. Ct. 2319, 2336 (2019), which invalidated the residual
clause in the definition of “crime of violence” in § 924(c)(3)(B) as unconstitutionally
vague. We have held that Davis announced a new rule of constitutional law that the
Supreme Court made retroactive to cases on collateral review through the combination of
its holdings in Welch v. United States, 136 S. Ct. 1257, 1265 (2016), and Davis. See In re
Mullins, 942 F.3d 975, 979 (10th Cir. 2019).
But we deny a COA because reasonable jurists would not debate whether the
district court correctly dismissed Perkins’ second § 2255 motion for lack of jurisdiction.
See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding in this context that to obtain a
COA a prisoner must demonstrate “that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling”). “[A] new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable” can be the basis for a second or successive § 2255 motion.
§ 2255(h). But § 2255(h) also makes clear that this court must first authorize such a
motion before it can be filed in the district court. See 28 U.S.C. § 2255(h) (providing that
a second or successive motion must be authorized by the court of appeals as provided in
28 U.S.C. § 2244).
Perkins has not yet filed a motion in this court seeking authorization to file a
second or successive § 2255 motion based on Davis, and we have not authorized him to
file such a motion. The district court’s lack of jurisdiction to consider the merits of
2
Perkins’ second § 2255 motion is therefore not debatable. See In re Cline, 531 F.3d
1249, 1251 (10th Cir. 2008).
We deny a COA and dismiss the matter. We grant Perkins’ request to proceed on
appeal without prepayment of fees and costs.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
3