UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RAMON MARTINEZ, Defendant - Appellant. No. 12-1333 (D.C. No. 1:04-CR -00429-MSK-1) (D. Colo.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.

Appellant Ramon Martinez, a federal pris oner, was convicted in 2004 of two offenses related to the distribution or posse ssion of methamphetamine. He now wishes to

file a second or successive habeas co rpus motion under 28 U.S.C. § 2255. 1 Before

*After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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.

1 Mr. Martinez filed his first § 2255 motion in 2008. The district court appointed him counsel, held an evidentiary hearing, and denied hi s motion. This court denied Mr. Continued . . . FILED United States Court of Appeals Tenth Circuit 

### January 18, 2013

Elisabeth A. Shumaker Clerk of Court-2- seeking the required authorization from this court to pursue a second or successive § 2255 motion, see 28 U.S.C. § 2255(h); id. § 2244(b)(3), Mr. Ma rtinez initially asked the district court to appoint counsel to “help [him] file a § 2255” motion. ROA, Vol. 2 at

39. The district court denied his motion, determining it lack ed jurisdiction because this court had not authorized Mr. Martinez to pursu e another § 2255 motion. He now appeals. Because Mr. Martinez appears pro se, we liberally construe his filings. See

Erickson v. Pardus , 551 U.S. 89, 94 (2007); see also United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). Mr. Martinez has moved for the appointment of counsel, which this court denied on September 10, 2012, pending full briefing and consideration of appellant’s statement of arguments. We construe Mr. Martinez’s brief as (1) requesting appointment of coun sel to assist him in drafti ng an application to pursue a second or successive §2255 motion, and, in the alternative, (2) requesting authorization to pursue a second or successive § 2255 motion. Mr. Martinez has no constitutional right to co unsel to pursue habeas corpus relief. Swazo v. Wyo. Dep’t of Corr. State Penitentiary Warden , 23 F.3d 332, 333 (10th Cir. 1994). He has failed to show any basis that the appointment of counsel would assist him in establishing one of the tw o grounds for authorizing a second or successive § 2255

motion: (1) newly discovered evidence that, if proven and viewed in light of the Martinez’s pro se application for a certificate of appealability. See United States v. Martinez , 359 F. App’x 949 (10th Cir. 2010) (unpublished).-3- evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h); see also id. § 2244(b)(3)(C). He identifies no newly discovered evidence that counsel could develop to show a second or successive § 2255 motion is warra nted. Nor does Mr. Martinez identify new, retroactive Supreme Court authority that wa s unavailable at the time of his first § 2255

motion. 2 Because Mr. Martinez has provided no ba sis to determine that counsel could help establish one of the grounds for author izing a second or successive § 2255 petition, we deny his request to appoint counsel. We also deny his request for authorization to file a second or successive § 2255

motion for the same reasons discussed above. Because we deny Mr. Martinez’s request for appointment of counsel and his

2 The only Supreme Court authority Mr. Martinez identifies is Rutledge v. United States , 517 U.S. 292 (1996), which was deci ded even before he was charged and obviously was available before he filed his first § 2255 motion. In addition, Mr. Martinez’s interpretation of Rutledge is mistaken. Mr. Martinez argues that because he was ac quitted of the charge of engaging in a continuing criminal enterprise (“CCE”) under 21 U.S.C. § 848, the jury could not have convicted him of conspiracy under 21 U. S.C. § 846. Mr. Martinez interprets Rutledge to hold that acquittal on a § 848 CCE charge requires acquitta l on a lesser-included § 846 conspiracy charge. This reading is incorrect. The Rutledge Court held that § 846 conspiracy is a lesser-included offense of § 848 CCE and that convictio n for both offenses constitute s unauthorized punishment. Id. at 1250-51. Mr. Martinez was convicted onl y of the lesser-include d offense, and thus no Rutledge violation occurred.-4- request for authorization for a second or su ccessive § 2255 motion, we dismiss as moot his appeal from the district court’s order deny ing his request for appointment of counsel. Mr. Martinez’s request to proceed in forma pauperis on appeal is denied

. ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge