UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ANTHONY WALTER SMITH, Defendant-Appellant. No. 13-1151 (D.C. Nos. 1:13-CV-00771-LTB & 1:91-CR-00188-LTB-4) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BRISCOE , Chief Judge, KELLY and PHILLIPS , Circuit Judges.
Anthony Walter Smith, a federal prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the dist rict court’s dismissa l of his successive 28 U.S.C. § 2255 motion for lack of jurisd iction. We deny a COA and dismiss the

matter. Mr. Smith was convicted on twenty-ei ght counts arising from crack cocaine trafficking, including charges of engaging in a continuing criminal enterprise (CCE), conspiracy, crack cocaine distribution, a nd money laundering. Hi s convictions were affirmed on direct appeal. See United States v. Smith , 24 F.3d 1230, 1232 (10th Cir.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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

### October 1, 2013 Elisabeth A. Shumaker Clerk of Court- 2 - 1994). He then filed a 28 U.S.C. § 2255 motion. The district court granted the motion in part, ordering that he could not be sentenced for both the CCE offense and the lesser-included offe nse of conspiracy. See United States v. Smith , 152 F. App’x 753, 754-55 (10th Cir. 2005). The court v acated the conspiracy conviction and the corresponding life sentence, and denied th e remainder of the motion. Mr. Smith sought a COA to appeal two issu es, but we denied his request. See id . at 755. In March 2013, Mr. Smith filed a “Successive 28 U.S.C. § 2255 Motion Challenging the Sentence and Conviction Purs uant to a Right Initially Recognized By the Supreme Court.” The district court determined that it was an unauthorized second or successive § 2255 mo tion and dismissed it for lack of jurisdiction. Mr. Smith now seeks a COA to appeal that dismissal. To obtain a COA, Mr. Smith must show both 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 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). Mr. Smith acknowledged in his filing in the district court that his motion was a successive § 2255 motion. But, as the district court noted in its order, Mr. Smith did not allege that he had obtai ned the necessary authorizati on from this court to file a second or successive § 2255 mo tion. Under these circumst ances, the district court determined that it must eith er dismiss the § 2255 motion fo r lack of jurisdiction or transfer it to this court. It concluded that transfer was not in the interest of justice- 3 - because the motion was time-bar red and “Mr. Smith fail[ed] to demonstrate that [his] claim [was] based on either ne wly discovered evidence or a new rule of constitutional law, as required pursuant to § 225 5(h)(2).” R., Vol. 1 at 21. In his COA application, Mr. Smith asse rts that the distri ct court erred in determining that it lacked jurisdicti on because 28 U.S.C. § 2255(f) and (h)(2) “granted the District Court the authority to review his constitutional claims.” COA App. at 3. That statement is not accura te. Section 2255(f) discusses the one-year filing deadline for first § 2255 motions and says nothing about the district court’s authority to review successive § 2255 cl aims. Section 2255(h)(2) would permit a district court to review succes sive § 2255 claims, if they were “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain . . . a new rule of constitutional law, made retroactive to case s on collateral review by the Supreme Court, that was pr eviously unavailable.” Mr. Smith, however, failed to seek au thorization from this court to file a second or successive § 2255 motion, as required by § 2244(b)(3)(A) (“Before a second or successive app lication permitted by this section is filed in the district court, the applicant shall move in the appropriate court of app eals for an order authorizing the district court to consider the application”). In the abse nce of such authorization, a district court lacks jurisdicti on to address the merits of a second or successive § 2255 motion. In re Cline , 531 F.3d 1249, 1251 (10th Ci r. 2008) (per curiam).- 4 - Accordingly, the district c ourt properly determined that it lacked jurisdiction to consider Mr. Smith’s su ccessive § 2255 motion. Mr. Smith also asserts th at the holdings in the Supreme Court’s decisions in Lafler v. Cooper , 132 S. Ct. 1376 (2012), and Missouri v. Frye , 132 S. Ct. 1399 (2012), support his claim that he received ineffective assi stance of counsel during the plea process and must be retroa ctively applied to his case. But we recently joined six other circuits in holding that these Supr eme 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). Reasonable jurists could not debate that the district court was correct to treat Mr. Smith’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 Mr. Smith’s motion fo r leave to proceed on appeal without prepayment of costs or fees. Entered for the Court

ELISABETH A. SHUMAKER, Clerk