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 CERTIFICATES OF APPEALABILITY*

_________________________________ 

Before KELLY, PHILLIPS, and McHUGH, Circuit Judges. 

_________________________________ 

In these appeals, Rodney McIntosh challenges the district court’s rulings on 

two motions that he filed after the district 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 motion on the merits. Under our controlling 

precedent, the district court should have deemed both of Mr. McIntosh’s motions as 

second or successive § 2255 motions. As such, we lack jurisdiction to entertain 

either appeal unless he first obtains a certificate of appealability (COA). Treating 

Mr. McIntosh’s appellate filings as requests for COAs, we conclude that his motions 

faced a clear procedural bar because the district court lacked subject matter 

 *

 This order is not binding precedent except under the doctrines of law of the 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 29, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

jurisdiction to consider them. We therefore deny Mr. McIntosh’s requests for COAs 

and dismiss these appeals, with instructions to the district court to vacate its 

decisions. 

I. Background 

 Mr. McIntosh was convicted of “eight counts of forcibly assaulting prison 

employees during his incarceration 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 motion 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 filed 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 his immediate release, arguing that the court erred in 

denying a jury-instruction claim he had 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 instruction on simple assault as a lesser included offense). At 

Mr. McIntosh’s request, the district court explicitly 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 the record on appeal filed in Appeal 

No. 17-3138. 
3 

a provision of the Administrative Procedures Act (APA), was not an independent 

basis for the court to vacate Mr. McIntosh’s criminal convictions, 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 dismissed 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 dismiss this appeal for lack of appellate 

jurisdiction because the motion, although styled differently, was an unauthorized 

successive § 2255 motion. 

Mr. McIntosh next filed a Motion to Compel Proof of Jurisdiction or Dismiss 

for Lack of the Same Pursuant 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 prosecute him. Alternatively, he argued that 

the judgment was void and should be dismissed for lack of jurisdiction. Citing 

Adams v. United States, 319 U.S. 312 (1943), Mr. McIntosh contended that the 

district court lacked jurisdiction to prosecute him because “the United States had not 

accepted jurisdiction over the lands upon which the crime was committed,” 

R., Vol. IV at 38. The district court “overrule[d]” Mr. McIntosh’s jurisdictional 

contention “[f]or substantially the reasons stated in prior orders and on the record.” 

Id. at 43. Mr. McIntosh challenges the district court’s denial of his Motion to 

Compel/Dismiss in Appeal No. 17-3109. 
4 

II. Discussion 

A. Mr. McIntosh Must Obtain a COA to Appeal the District Court’s 

Orders Dismissing and Denying his Motions 

“Where required, a COA is a prerequisite to this court’s exercise of 

jurisdiction, and 28 U.S.C. § 2253(c)(1)(B) plainly requires 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 district 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 after the district court denied his first § 2255 

motion. And “[a] prisoner’s post-judgment 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 characterize 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 Compel/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 Rule 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, although styled differently, both of Mr. McIntosh’s motions 

were second or successive motions 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 this 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 expressly seek a COA from this court. But 

we construe his notices of appeal as requests for COAs. See id. at *9. 

 2

 Mr. McIntosh asserts that he is entitled to notice before a court construes his 

motions as filed under § 2255. But this restriction on recharacterization 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 § 2255 motion on the merits, our COA inquiry 

typically focuses on whether “reasonable jurists would find the district court’s 

assessment of the constitutional 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 district court did not invoke 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 authorization 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 proceeding first to resolve the issue whose 

answer is more apparent 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. McIntosh’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 allowed to proceed further. In 

such a circumstance, no appeal would be warranted.” Slack, 529 U.S. at 484. We 

can deny a COA where there is a plain procedural 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 affirm on any ground adequately supported by the 

record.” (brackets and internal quotation marks omitted)). Thus, we have denied a 

COA based on a plain procedural bar where the district court dismissed 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 district court failed to treat a motion as 

proceeding under § 2255 and, without this court’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 subsequent motion subject to the statutory 

constraints on filing a second or successive motion. Id. at *10. “One such constraint 

precludes a petitioner from filing a second or successive § 2255 motion unless he 

first obtains an order from the appropriate court of appeals authorizing the district 
8 

court to consider the motion.” Id. at *11 (internal quotation marks omitted). Section 

2255(h) imposes this authorization requirement on second 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 jurisdiction to consider 

the merits of an unauthorized § 2255 motion. Springer, 2017 WL 5247785, at *11. 

Thus, when the district court summarily 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 district 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 jurists could not debate whether the 

district court lacked jurisdiction to consider both of Mr. McIntosh’s motions. 

Therefore, even though the district court did not rely on it, we deny a COA in each of 

his appeals based on this jurisdictional 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.