United States v. Pinkerton ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 27, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-8008
(D.C. No. 1:13-CR-00170-ABJ-1)
JOHN SCOTT PINKERTON, (D. Wyo.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before BRISCOE, HARTZ, and MORITZ, Circuit Judges.
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John Scott Pinkerton seeks a certificate of appealability (COA) to appeal from the
district court’s dismissal of his post-conviction motion as an unauthorized second or
successive 28 U.S.C. § 2255 motion. We deny a COA and dismiss this matter. But
although the district court correctly recognized that it lacked jurisdiction to adjudicate the
motion, it entered a dismissal with prejudice rather than without prejudice.
See Abernathy v. Wandes, 713 F.3d 538, 558 (10th Cir. 2013) (holding that a dismissal
for lack of subject matter jurisdiction is a dismissal without prejudice). We therefore
*
This order is not binding precedent except under the doctrines of law of the case,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.
vacate the judgment and remand with instructions for the district court to enter a
judgment reflecting that the dismissal was without prejudice.
Mr. Pinkerton pleaded guilty to one count of attempted online enticement of a
minor in violation of 18 U.S.C. § 2422(b). He did not file a direct appeal, but did file
unsuccessful post-judgment motions for relief in the nature of a writ of coram nobis and
for relief under § 2255. This matter concerns a November 2017 “Petition Pursuant to
Federal Rule of Civ P 60(b)(4), 60(d)(3) and 28 U.S.C. §1651 for Emergency Relief from
Void Judgment” seeking to declare the judgment void ab initio for lack of jurisdiction,
violations of due process, and fraud on the court. The district court determined the filing
was an unauthorized second or successive § 2255 motion and dismissed it for lack of
jurisdiction. See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251-52 (10th Cir.
2008) (per curiam).
To appeal from the district court’s decision, Mr. Pinkerton must obtain a COA.
See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). That requires him to
show “that jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and 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). Before this court, Mr. Pinkerton focuses on the
merits of his underlying claims. We do not consider the merits, however, because no
reasonable jurist could debate the district court’s procedural decision to dismiss the
motion for lack of jurisdiction.
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Because Mr. Pinkerton has already pursued relief under § 2255, he must obtain
this court’s authorization before filing another § 2255 motion in the district court.
See 28 U.S.C. § 2255(h). “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
[the sentence] is otherwise subject to collateral attack.” United States v. Nelson, 465 F.3d
1145, 1148 (10th Cir. 2006) (internal quotation marks omitted). Mr. Pinkerton’s claims
attacking the court’s jurisdiction and alleging due process violations and fraud on the
sentencing court fall squarely within § 2255. And Mr. Pinkerton cannot escape the
requirements of § 2255(h) by titling his motion as one under Fed. R. Civ. P. 60(b)(4) and
60(d)(3). “It is the relief sought, not [the] pleading’s title, that determines whether the
pleading is a § 2255 motion.” Nelson, 465 F.3d at 1149; see also United States v. Baker,
718 F.3d 1204, 1208 (10th Cir. 2013) (holding that a motion alleging fraud on the court
in the underlying criminal proceeding, brought in part under Rule 60(d)(3), was subject to
the authorization requirements of § 2255(h)).
Nelson and Baker require Mr. Pinkerton’s filing to be considered as a second or
successive § 2255 motion. And “if the prisoner’s pleading must be treated as a second or
successive § 2255 motion, the district court does not even have jurisdiction to deny the
relief sought in the pleading.” Nelson, 465 F.3d at 1148. Therefore, no reasonable jurist
could debate the district court’s decision to dismiss the motion for lack of jurisdiction.
Further, no reasonable jurist could debate that dismissal rather than transfer was an
appropriate disposition. See Cline, 531 F.3d at 1252.
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A COA is denied and this matter is dismissed. But the district court improperly
dismissed the matter with prejudice, rather than without prejudice. See Abernathy,
713 F.3d at 558. We therefore vacate the judgment and remand with instructions for the
district court to enter a judgment reflecting that the dismissal was without prejudice.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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