UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff

− Appellee,

v. GEORGE ERMAN DAGO, Defendant

− Appellant. No. 13-1158 (D.C. Nos. 1:13-CV-00735-REB and 1:92-CR-00245-REB-1) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , EBEL , and MATHESON , Circuit Judges.

George Erman Dago, a fe deral prisoner proceeding pr o se, seeks a certificate of appealability (COA) to appeal the di strict court’s dism issal of his second 28 U.S.C. § 2255 motion for lack of jurisd iction. We deny a COA and dismiss the

matter. Mr. Dago was convicted in 1992 of mult iple counts related to drug trafficking and sentenced to 360 months’ imprisonment. On appeal, we vacated several of his convictions and some special assessments, but these issues did not affect the total

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 19, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - length of his prison term. See United States v. Dago , No. 93-1042, 1994 WL 387836, at *1, *7 (10th Cir. July 26, 1994). He ti mely filed a 28 U.S.C. § 2255 motion, which the district court denied. He sought a CO A and we granted it on four issues, but we ultimately affirmed the dist rict court’s judgment. See United States v. Dago , 441 F.3d 1238, 1241-42 (10th Cir. 2006). In September 2012, Mr. Dago filed a moti on for authorization to file a second or successive § 2255 motion seeking to raise a claim that his couns el was ineffective for failing to present him w ith a favorable plea offer r eceived from the government. In support of his motion, he cited to the Supreme Court’s decisions in Lafler v. Cooper , 132 S. Ct. 1376 (2012), and Missouri v. Frye , 132 S. Ct. 1399 (2012). He argued that these decisions adopted new ru les of constitutional law that entitled him to authorization under § 2255(h)(2). We de nied authorization without reaching that question because the Supreme Court had not made the decisions “r etroactive to cases on collateral review,” as required by § 2255(h)(2). In re Dago , No. 12-1353, Order at 2-3 (10th Cir. Oct. 4, 2012). In March 2013, Mr. Dago filed a second § 2255 moti on. The district court determined that it was an unauthorized seco nd or successive motion and dismissed it for lack of jurisdiction. Mr. Dago now seeks a COA to appeal that dismissal. To obtain a COA, Mr. Dago must show both that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional- 3 - right and that jurists of re ason would find it debatable wh ether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). A prisoner may not file a second or successive § 22 55 motion unless he first obtains an order from the circ uit court authorizing the dist rict court to consider the motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255( h). In the absence of such authorization, a district cour t lacks jurisdiction to address the merits of a second or successive § 2255 motion. See In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Mr. Dago’s first § 2255 motion was deni ed on the merits. He then sought authorization to file a second or successi ve § 2255 motion and it was denied. Even though he lacked authorization to do so, he filed a second § 22 55 motion challenging the same convictions and sentence as his first § 2255 motion. The district court properly determined that Mr . Dago had filed an unauthor ized second or successive § 2255 motion. In his COA application, Mr. Dago seeks to rely on Lafler and Cooper to establish that his claims are not successive. This is the sa me argument that he made in his motion for authorization, which we de nied. And we recently joined six other circuits in holding that th ese Supreme Court decisions do not establish a new rule of constitutional law. See In re Graham , 714 F.3d 1181, 1182-83 (10th Cir. 2013) (per curiam). The district court therefore properly exer cised its discretion not to transfer the motion and to dismiss it for lack of jurisdiction instead. See Cline , 531- 4 - F.3d at 1252 (explaining that district court may transfer unauthorized second or successive § 2255 motion to this court “if it dete rmines it is in the interest of justice to do so under [28 U.S.C.] § 1631, or it may dismiss the motion . . . for lack of jurisdiction.”). Reasonable jurists could not debate that the district court was correct to treat Mr. Dago’s new § 2255 motion as an una uthorized second or successive § 2255 motion and dismiss it for lack of jurisd iction. Accordingly, we deny a COA and dismiss this matter. We grant Dago’s motion for leav e to proceed on appeal without prepayment of costs or fees. Entered for the Court

ELISABETH A. SHUMAKER, Clerk