UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RODNEY MCINTOSH, Defendant - Appellant. Nos. 17-3109 & 17-3138 (D.C. No. 2:11-CR-20085-KHV-1) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFICAT ES OF APPEALABILITY *

________________ _________________ Before KELLY , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ In these appeals, Rodney McIntosh challenges th e district court’s rulings on two motions that he filed after the distri ct court denied his initial motion seeking relief under 28 U.S.C. § 2255. The district court dismissed the first motion for lack of jurisdiction and denied the second mo tion on the merits. Under our controlling precedent, the district court should have deemed both of Mr. McIntosh’s motions as second or successive § 2255 mo tions. As such, we lack jurisdiction to entertain either appeal unless he first obtains a cer tificate of appealabili ty (COA). Treating Mr. McIntosh’s appellate filings as request s for COAs, we concl ude that his motions faced a clear procedural bar because the district court lacked subject matter

* This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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

### November 29, 2017 Elisabeth A. Shumaker Clerk of Court2 jurisdiction to consider them. We theref ore deny Mr. McIntosh’s requests for COAs and dismiss these appeals, wi th instructions to the di strict court to vacate its decisions. I. Background Mr. McIntosh was convicted of “eight counts of forcibly assaulting prison employees during his incarcerati on at the United States Penitentiary in Leavenworth, Kansas,” in violation of 18 U.S.C. § 111(a)(1). United States v. McIntosh , 573 F. App’x 760, 761 (10th Cir. 2014). We affirmed his convictions and sentence on appeal. Id. at 765. After the district court denied his initial mo tion to vacate his sentence under § 2255, we denied a COA and dismissed his appeal. United States v. McIntosh , 676 F. App’x 792, 793, 795 (10th Cir. 2017). Shortly thereafter, Mr. McIntosh file d a Motion to Set Aside Pursuant to 5 U.S.C. § 706(2)(A) (Motion to Set Aside). He asked the district court to set aside his convictions and order hi s immediate release, arguing that the court erred in denying a jury-instruction claim he ha d raised in his first § 2255 motion. See McIntosh , 676 F. App’x at 794 (noting district court’s holding that Mr. McIntosh was not entitled to a jury instruct ion on simple assault as a le sser included offense). At Mr. McIntosh’s request, the district court e xplicitly declined to construe this motion as filed under § 2255. R., Vol. IV at 36 n.1. 1 The court did hold, on other grounds, that it lacked jurisdiction to consider the motion. It concluded that § 706(2)(A),

1 Citations to the record are to th e record on appeal filed in Appeal No. 17-3138.3 a provision of the Administrative Procedur es Act (APA), was not an independent basis for the court to vacate Mr. McIntosh’s criminal c onvictions, nor was the court authorized to modify his sentence under 18 U. S.C. § 3582(c) or Fed. R. Crim. P. 35 or 36. The district court therefore dismis sed the motion for lack of jurisdiction. Mr. McIntosh challenges the dismissal of his Motion to Set Aside in Appeal No. 17-3138. The government moves to dism iss this appeal for lack of appellate jurisdiction because the motion, although st yled differently, was an unauthorized successive § 2255 motion. Mr. McIntosh next filed a Motion to Co mpel Proof of Jurisdiction or Dismiss for Lack of the Same Pu rsuant to Fed. R. Civ. P. 60(b)(4) (Motion to Compel/Dismiss). He asked the district court to compel the government to provide proof that the court had jurisdiction to pros ecute him. Alternatively, he argued that the judgment was void and should be dismi ssed for lack of jurisdiction. Citing Adams v. United States, 319 U.S. 312 (1943), Mr. McIntosh contended that the district court lacked jurisd iction to prosecute him becaus e “the United States had not accepted jurisdiction over the lands up on which the crime was committed,” R., Vol. IV at 38. The district court “overrule[d]” Mr. McIn tosh’s jurisdictional contention “[f]or substantially the reasons stated in prior or ders and on the record.” Id. at 43. Mr. McIntosh challenges the di strict court’s denial of his Motion to Compel/Dismiss in Appeal No. 17-3109.4 II. Discussion A. Mr. McIntosh Must Obtain a CO A to Appeal the District Court’s Orders Dismissing and Denying his Motions “Where required, a COA is a prerequi site to this court’s exercise of jurisdiction, and 28 U.S.C. § 2253(c)(1)(B) plainly requi res petitioners to obtain a COA to appeal any final order in a proceeding under section 2255.” United States v. Springer , __F.3d__, 2017 WL 5247785, at *2 (10th Cir. Nov. 13, 2017) (internal quotation marks omitted). Mr . McIntosh argues that the di strict court’s rulings on his motions were not final orders in a § 2255 proceeding because he did not seek relief under § 2255. But he filed the motions afte r the district court denied his first § 2255 motion. And “[a] prisoner’s post-judgmen t motion”—however styled—“is treated like a second-or-successive § 2255 motion . . . if it asserts or reasserts claims of error in the prisoner’s conviction.” United States v. Baker , 718 F.3d 1204, 1206 (10th Cir. 2013). If Mr. McIntosh had sought to correct errors in the previously conducted § 2255 proceeding itself, we would not ch aracterize his motions as successive under § 2255. See id

. at 1206. But he did not: in each motion he asserted or reasserted claims of error in his convictions under 18 U.S.C. § 111(a)(1). In his Motion to Set Aside, he asked the district court to set aside his convictions based on a jury-instruction error; in his Motion to Comp el/Dismiss, he asked the court to dismiss his convictions based on a lack of jurisdiction. The fact that Mr. McIntosh labeled his motions as filed under the APA and Ru le 60(d)(4) does not change our analysis,5 because “[i]t is the relief sought, not the pleading’s title, that determines whether the pleading is a § 2255 motion.” Id. at 1207 (brackets and internal quotation marks omitted). Therefore, alt hough styled differently, both of Mr. McIntosh’s motions were second or successive moti ons seeking relief under § 2255. 2 The government construes Mr. McIntosh’s Motion to Compel/Dismiss, in part, as a motion to compel discovery. Even so, he sought discovery in support of a request for relief under § 2255. In denying the entire motion, the district court entered a final order in a § 2255 proceeding. As such, Mr. McIntosh cannot appeal any part of the order without first obtaining a COA. See Dulworth v. Jones , 496 F.3d 1133, 1136 (10th Cir. 2007) (“[I]n our judgment all appeals from final orders in habeas cases, of whatever type, should be required to meet the COA standard to proceed.”). Accordingly, because the district court was proceeding under § 2255, Mr. McIntosh must obtain a COA before th is court can review the district court’s orders dismissing and denying his motions. See Springer , 2017 WL 5247785, at *2. B. We Deny Mr. McIntosh’s Request for a COA in Each of His Appeals The district court failed to treat either of Mr. McIntosh’s motions as proceeding under § 2255, and he does not expr essly seek a COA from this court. But we construe his notices of a ppeal as requests for COAs. See id. at *9.

2 Mr. McIntosh asserts that he is entitled to notice be fore a court construes his motions as filed under § 2255. But this re striction on recharac terization applies only to initial § 2255 motions. See United States v. Nelson , 465 F.3d 1145, 1149 (10th Cir. 2006).6 When a district court denies a § 22 55 motion on the merits, our COA inquiry typically focuses on whether “reasonable ju rists would find the district court’s assessment of the constitutiona l claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). But where, as in Appeal No. 17-3109, the district court summarily denies a successive § 2255 motion on the merits , despite the absence of authorization, we must first assess our own jurisdiction. That is, we must decide whether a COA should issue. And we may deny a COA if there is a plain procedural bar to habeas relief, even if the distri ct court did not inv oke that bar. See Springer , 2017 WL 5247785, at *9. We apply this rule to Appeal No. 17-3109 because the district court denied the successive § 2255 motion on the merits while lacking jurisdiction to do so. The district court denied Appeal No. 17- 3138 for lack of jurisdiction (albeit on grounds other than the absence of authori zation to consider a second or successive § 2255 motion). When a district court dismisses a § 2255 motion for lack of jurisdiction, we apply the two-part COA test applicable to procedural rulings, asking if “jurists of reason would find it debatable” (1) “whether the petition states a valid claim of the denial of a constitutional right” and (2) “whether the district court was correct in its procedural ruling.” Id. (internal quotation marks omitted). Under this latter test, “we may deny a COA by proceed ing first to resolve the issue whose answer is more appare nt from the record.” Id. (internal quotation marks omitted). We apply this COA standard in Appeal No. 17-3138 because the district court dismissed Mr. McIntosh’s Motion to Set Aside for lack of jurisdiction.7 We deny a COA in each of Mr. McInto sh’s appeals because both of his motions would fail under “a plain procedural bar”; consequently, “a reasonable jurist could not conclude . . . that the petitioner should be allowe d to proceed further. In such a circumstance, no app eal would be warranted.” Slack , 529 U.S. at 484. We can deny a COA where there is a plain procedur al bar to relief even when the district court did not invoke that bar. Davis v. Roberts , 425 F.3d 830, 834 (10th Cir. 2005) (“In general, we have discretion to affi rm on any ground adequately supported by the record.” (brackets and intern al quotation marks omitted)). Thus, we have denied a COA based on a plain procedural bar where the district court di smissed the claim on a different ground. In Davis , we applied the “in custody” requirement for habeas relief under 28 U.S.C. § 2241 to deny a COA on a claim that the district court had dismissed as time-barred. Id. at 833-34. We have also denied a COA on this basis where the district court denied the claims on the merits. In Springer , we applied a jurisdictional bar to deny a COA where the di strict court failed to treat a motion as proceeding under § 2255 and, without this c ourt’s authorization, summarily denied a successive claim on the merits. 2017 WL 5247785, at *10-11. The procedural bar we applied in Springer also precludes a COA in Mr. McIntosh’s appeals. As here, the prisoner in Springer had previously filed an initial § 2255 motion, making his subseque nt motion subject to the statutory constraints on filing a sec ond or successive motion. Id. at *10. “One such constraint precludes a petitioner from fi ling a second or successive § 2255 motion unless he first obtains an order from th e appropriate court of appeal s authorizing the district8 court to consider the motion.” Id. at *11 (internal quotation marks omitted). Section 2255(h) imposes this aut horization requirement on se cond or successive § 2255 motions. See 28 U.S.C. § 2255(h); see also 28 U.S.C. § 2244(b)(3)(A). Circuit court authorization is jurisdictional; therefore, a district court lacks ju risdiction to consider the merits of an un authorized § 2255 motion. Springer , 2017 WL 5247785, at *11. Thus, when the district court summar ily denied Mr. McIntosh’s Motion to Compel/Dismiss on the merits rather than dismissing it as unauthorized, it acted without subject matter jurisdiction. See id. And although the dist rict court relied on an incorrect basis for doing so, it properly dismissed his Motion to Set Aside for lack of jurisdiction. Under these circumstances, reasonable ju rists could not debate whether the district court lacked jurisdiction to c onsider both of Mr. McIntosh’s motions. Therefore, even though the di strict court did not rely on it, we deny a COA in each of his appeals based on this juri sdictional procedural bar. See id.9 III. Conclusion We deny a COA in Appeal Nos. 17-3109 and 17-3138. We dismiss both appeals, with instructions to the district court to vacate its decisions. We deny as moot the government’s motion to dismiss Appeal No. 17-3138. 3

Entered for the Court
Carolyn B. McHugh Circuit Judge

3 We decline to exercise our discretion to construe Mr. McIntosh’s appeals as requests for authorization. Springer , 2017 WL 5247785, at *11 n.12.