UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GARY DEWILLIAMS, Defendant-Appellant. No. 13-1370 (D.C. Nos. 1:12-CV-02347-CMA & 1:88-CR-00064-CMA-1) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BRISCOE , Chief Judge, BACHARACH and PHILLIPS , Circuit Judges.
Gary deWilliams, a federal prisoner pro ceeding pro se, seeks a certificate of appealability (COA) to appeal the dismissal of his “Mo tion for Relief from a Void Judgment Pursuant to Federal Rules of Ci vil Procedure Rule 60(b)(4),” which the district court construed as an unauthorized successive 28 U.S.C. § 2255 motion.
See 28 U.S.C. § 2255(h). We deny a COA and dismiss this matter. In 1988, Mr. deWilliams pleaded gu ilty to bank robbery and making a false statement. Three weeks afte r sentencing him, the distri ct court entered an order clarifying the judgment, specifying that the sentence was a pre-Guid elines sentence.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### February 10, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - In 2005, Mr. deWilliams filed a § 2255 moti on, which the district court denied as time-barred. See United States v. deWilliams , 178 F. App’x 819, 820 (10th Cir. 2006). Since then, he has filed nume rous unsuccessful challenges to his 1988 pre-Guidelines sentence. See In re deWilliams , No. 11-1575, at 2-4 (10th Cir. Jan. 26, 2012) (unpublished or der) (summarizing filings). To appeal the district court’s dismissa l of his “Motion for Relief from a Void Judgment,” Mr. deWilliams must secure a COA. To do so, he must show “that jurists of reason would find it deba table whether the petition stat es a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was corr ect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Regarding the procedural aspect of the Slack test, Mr. deWillia ms asserts that his “Motion for Relief from a Void Judgm ent” addressed the district court’s timeliness decision in the 2005 proceeding. Therefore, he argues, it was not a successive § 2255 motion because it attack ed the integrity of the prior § 2255 proceeding rather than the validity of his sentence. See Gonzalez v. Crosby , 545 U.S. 524, 532-33 & n.4 (20 05) (stating that a prisoner is not stating a claim for habeas relief that invokes the restrictions on successive applicati ons when “he merely asserts that a previous ruling which precl uded a merits determination was in error— for example, a denial for . . . [a ] statute-of limitations bar”); Spitznas v. Boone ,- 3 - 464 F.3d 1213, 1216 (10t h Cir. 2006) (same); see also United States v. Nelson , 465 F.3d 1145, 1147 (10th Cir. 2006) (applying Gonzalez to a § 2255 motion). The “Motion for Relief from a Void Judgment,” however, says nothing about the 2005 § 2255 proceeding. It is quite clear that the goal of this filing was to vacate the underlying 1988 sentence. Accordingl y, no reasonable jurist would find it debatable whether the district court was co rrect in dismissing the “Motion for Relief from a Void Judgment” as an unaut horized successive § 2255 motion. See In re Cline , 531 F.3d 1249, 1251-52 (10th Cir. 2008) (per curiam). Giving Mr. deWilliams the benefit of liberal construction, we acknowledge that in other materials he f iled in the district court in conjunction with his “Motion for Relief from a Void Judgment,” he did refer to the district court’s 2005 ruling. But even if he could satisfy the procedural aspect of the Slack test, he cannot satisfy the constitutional aspect. Re asonable jurists would not fi nd it debatable whether the “Motion for Relief from a Void Judgment” states a valid claim of the denial of a constitutional right. Because Mr. deWil liams already has pursued relief under § 2255, any new motion for relief from his 1988 sentence is successive and requires authorization under § 2255(h). See United States v. deWilliams , 299 F. App’x 801, 803 (10th Cir. 2008) (instructing Mr. deWilliams on th e procedure for filing a second or successive § 2255 motion). The “Moti on for Relief from a Void Judgment” identifies no new Supreme Court decisi on or new evidence that would support authorization. Moreover, more than once, this court already has denied- 4 - Mr. deWilliams authorizati on to file § 2255 claims ch allenging his pre-Guidelines

sentence. See In re deWilliams , No. 11-1575, at 5-6; DeWilliams v. Davis , 369 F. App’x 912, 914 (10th Cir. 2010). No further proceedings are warranted. Mr. deWilliams’ motion for leave to pr oceed without prepayment of fees and costs is granted. The application for COA is denied and this matte r is dismissed.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk