Lee v. Maye , 581 F. App'x 721 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
October 24, 2014
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BRANDON CHE LEE,
Petitioner-Appellant,
No. 14-3127
v.
(D.C. No. 5:14-CV-03076-RDR)
(D. Kan.)
CLAUD MAYE, Warden,
Respondent-Appellee.
BRANDON CHE LEE,
Petitioner-Appellant,
No. 14-3134
(D.C. No. 5:14-CV-03090-RDR)
v.
(D. Kan.)
PAUL M. LAIRD,
Respondent-Appellee.
ORDER DENYING CERTIFICATES OF APPEALABILITY *
Before LUCERO, GORSUCH, and MORITZ, Circuit Judges.
*
This order is not binding precedent except under the doctrines of law of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.
The Ninth Circuit has affirmed Brandon Lee’s criminal conviction on direct
review, see United States v. Lee, 465 F. App’x 627 (9th Cir. 2012), and this court
has rejected previous collateral challenges to that conviction, see Lee v. Cozza-
Rhodes, 549 F. App’x 785 (10th Cir. 2013); Lee v. Cozza-Rhodes, 517 F. App’x
630 (10th Cir. 2013). Today, Mr. Lee presents two more collateral challenges.
Though nominally filed pursuant to 28 U.S.C. § 2241, the district court found that
Mr. Lee’s petitions in fact seek relief from his conviction and sentence, matters
properly the subject of 28 U.S.C. § 2255. The district court then found that it
lacked jurisdiction to issue relief under § 2255(a), as that statute generally
requires a petitioner to seek relief in the court of his conviction (here, the Central
District of California). Mr. Lee now seeks to appeal this ruling.
Mr. Lee, however, does not establish that the district court erred in
characterizing his petitions as successive § 2255 collateral attacks on his federal
criminal conviction or sentence. And given that, the law required him to seek
permission from this court before he could proceed in the district court. See 28
U.S.C. § 2255(h). To be sure, our precedent allows us in circumstances like these
to construe appeals like Mr. Lee’s as requests to pursue a second or successive
collateral proceeding. See Spitznas v. Boone, 464 F.3d 1213, 1219 n.8 (10th Cir.
2006). But we must deny Mr. Lee’s requests for essentially the same reason the
district court gave. Under the law, a request to pursue a second or successive
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§ 2255 petition must be addressed to the “appropriate court of appeals,” here the
Ninth Circuit which oversees the Central District of California. Neither in any
event does Mr. Lee present newly discovered evidence suggesting his innocence
or identify a new rule of constitutional law retroactively applicable to his case,
two other statutory preconditions to the relief he seeks. See 28 U.S.C. § 2255(h).
Construing Mr. Lee’s appeals as requests for certificates of appealability,
they and his motions to proceed in forma pauperis are denied. These appeals are
dismissed. Mr. Lee is reminded that he must pay the filing fee in full.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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