United States v. Newman , 25 F. App'x 810 ( 2002 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 22 2002
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                    No. 00-3364
    (D.C. Nos. 00-CV-3337,
    WILLIAM H. NEWMAN,                                   87-CR-30008)
    (D. Kan.)
    Defendant-Appellant.
    ORDER AND JUDGMENT          *
    Before EBEL , KELLY , and LUCERO , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination
    of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    This appeal is taken from a district court order denying sua sponte
    defendant’s 
    28 U.S.C. § 2255
     motion to vacate his sentence as untimely filed.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    We granted a certificate of appealability under 
    28 U.S.C. § 2253
    (c)(1)(B) and
    directed the government to address the issue of whether and under what
    circumstances the district court may sua sponte dismiss an action under § 2255
    without first providing the defendant with notice and an opportunity to respond to
    the court’s proposed dismissal.
    In response, the government filed a motion to dismiss the appeal because
    the district court lacked jurisdiction to entertain the § 2255 motion, as it was
    successive to one filed and denied in 1991.         See United States v. Newman ,
    No. 91-3149, 
    1991 WL 151780
     (10th Cir. Aug. 8, 1991). Defendant has had the
    opportunity to respond to the motion to dismiss as provided by
    10th Cir. R. 27.2(A)(4) , but has not done so.
    Under 
    28 U.S.C. § 2244
    , a prisoner may not file a successive motion under
    § 2255 without first obtaining permission from this court.        See Daniels v. United
    States , 
    254 F.3d 1180
    , 1188 (10th Cir. 2001). Therefore the district court lacked
    jurisdiction to rule on the second motion, and we must vacate the district court’s
    order. See United States v. Avila-Avila , 
    132 F.3d 1347
    , 1348-49 (10th Cir.
    1997); Lopez v. Douglas , 
    141 F.3d 974
    , 975-76 (10th Cir. 1998).
    We will, however, construe defendant’s notice of appeal and his pro se
    brief as an implied application to file a second § 2255 motion in district court.
    -2-
    Avila-Avila , 
    132 F.3d at 1349
    . In order to obtain permission to file a successive
    application, defendant must show that his motion contains
    (1) newly discovered evidence that, if proven and viewed in light of
    the evidence as a whole, would be sufficient to establish by clear and
    convincing evidence that no reasonable factfinder would have found
    the movant guilty of the offense; or
    (2) a new rule of constitutional law, made retroactive to cases on
    collateral review by the Supreme Court, that was previously
    unavailable.
    
    28 U.S.C. § 2255
    .
    Defendant recited alleged trial errors and argues that his sentence for the
    escape charge should have been made to run concurrently with another conviction
    or convictions. He also alleges that under Amendment 289 to the United States
    Sentencing Guidelines (USSG § 5G1.3), “if an offense is committed while on
    escape the escape charge will be dropped.” Appellant’s Br. at 15.
    Upon review of defendant’s arguments, we are satisfied that he has
    failed to meet the requirements for filing a successive § 2255 application.
    Accordingly, we GRANT the government’s motion to dismiss. The district
    court’s order of November 1, 2000, disposing of defendant’s second petition is
    VACATED, and defendant’s implied application for leave to file a second
    § 2255 motion in district court is DENIED. Inasmuch as the district court
    -3-
    granted defendant’s motion for leave to proceed in forma pauperis, the like
    motion made in this court is DENIED as moot.
    Entered for the Court
    David M. Ebel
    Circuit Judge
    -4-
    

Document Info

Docket Number: 00-3364

Citation Numbers: 25 F. App'x 810

Judges: Ebel, Kelly, Lucero

Filed Date: 1/22/2002

Precedential Status: Non-Precedential

Modified Date: 8/3/2023