UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. STEVEN BRADLEY JONES, SR., Defendant - Appellant. No. 15-8043 (D.C. Nos. 2:07-CV-00322-ABJ & 2:05-CR-00078-ABJ-5) (D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HARTZ , O’BRIEN , and BACHARACH , Circuit Judges.
Steven Bradley Jones, Sr. seeks to appeal from the di strict court’s dismissal of his “Subject-Matter Jurisdictional Challenge Purs uant to Fed. R. Civ. P. 12(b)(1)” for presenting unauthorized second or successive 28 U.S.C. § 2255 claims. We deny a certificate of appealability (COA) and dismiss this matter. 1 In 2005, a jury convicted Mr. Jones of conspiracy to possess with intent to distribute, and to distribute, cocaine base (crack cocaine), and conspiracy to use a

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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.
1 Mr. Jones did not explicitly request a COA, but because he must have one to appeal, the court has construed his noti ce of appeal as a request for a COA. FILED United States Court of Appeals Tenth Circuit 

### November 4, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - place where crack cocaine is manufactured, distributed, a nd used, in violation of 21 U.S.C. §§ 841, 846, and 856. He was sentenced to 300 months’ imprisonment. After this court affirm ed on direct appeal, see United States v. Jones , 468 F.3d 704, 711 (10th Cir. 2006), Mr. Jones unsuccessfully pursued a § 2255 motion, see United
States v. Jones , 437 F. App’x 639, 640- 41 (10th Cir. 2011). As relevant to this appeal, in January 2015, he filed his “Subject-Matter Jurisdictional Challenge Pursuant to Fed. R. Civ. P. 12(b)(1),” in which he asserted that the district court lacked jurisdiction to conduc t the criminal pro ceedings against him. He argued that the indictment was unconstitu tionally duplicitous and that the United States had no standing to respond to his original § 2255 motion (and, by extension, to prosecute him) because the evidence at his crimin al trial was insuffi cient to show the United States had suffered an injury in fact. Concl uding that the filing was the equivalent of a § 2255 motion, and therefore was subject to the restrictions on second or successive § 2255 motions, the district court dismissed it for lack of jurisdiction.
See 28 U.S.C. § 2255(h) (limiting second or successive motions); In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam) (holding that district court has no jurisdiction to decide unauthorized se cond or successive § 2255 claims). To appeal, Mr. Jones must obtain a COA. See United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008). For a COA, he mu st show “that jurists of reason would find it debatable wh ether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the- 3 - district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We need not examine the first Slack prong because Mr. Jones fails to establish the second prong. “[A] second or successive § 2255 moti on cannot be filed in district court without approval by a pane l of this court.” United States v. Nelson , 465 F.3d 1145 1148 (10th Cir. 2006); see also 28 U.S.C. §§ 2255(h), 2244(b )(3). “It is the relief sought, not [the] pleading’s title, that de termines whether the pleading is a § 2255 motion.” Nelson , 465 F.3d at 1149. A § 2255 motion is one “claiming th e 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 w ithout jurisdiction to impose such sentence , or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Id. at 1148 (quoting 28 U.S.C. § 2255(a)) (emphasis added). Mr. Jones’ filing alleged that the district c ourt lacked jurisdiction, and therefore the district court properly treated the filing as the e quivalent of a § 2255 motion. Mr. Jones invokes Fed. R. Ci v. P. 15(c), asserting that his claims should relate back to his original § 2255 pr oceeding. And he states that his “instant filing seeks to amend, clarify, and amplify hi s original § 2255.” Aplt. Br. at v. In Nelson , however, this court concluded that a post-judgment Rule 15 motion seeking to amend a § 2255 motion was subject to the restrictions on second or successive § 2255 motions. 465 F.3d at 1148-49; see also Gonzalez v. Crosby , 545 U.S. 524, 532 & n.4 (2005) (stating that a Fed. R. Civ. P. 60(b) mo tion that seeks to add a new claim or to- 4 - re-litigate a previously rais ed claim qualifies as a seco nd or successive 28 U.S.C. § 2254 application). We see no reason to treat Mr. Jones’ motion differently than the motion at issue in Nelson

. As stated, Mr. Jones alre ady pursued relief under § 2255. “And because judgment has been entered on [his] first § 2255 motion, it cannot be disputed that this is a second or successive § 2255 motion.” Nelson , 465 F.3d at 1149. Further, it is clear that “if the prisoner’s pleading must be treated as a sec ond or successive § 2255 motion, the district court does not even have jurisdiction to deny th e relief sought in the pleading.” Id. at 1148. For these reasons, no reasonable juri st could debate the propriety of the district cour t’s dismissal, for lack of ju risdiction, of Mr. Jones’ “Subject-Matter Jurisdictional Challenge Pursuant to Fed. R. Civ. P. 12(b)(1).” Mr. Jones’ motion to proceed without prep ayment of costs and fees is granted; however, he is still responsible for fi ling and docketing fees in the amount of $505.00. Payment must be made to the clerk of the district court. A COA is denied and this matter is dismissed.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk