*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 26 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-5070

v. N.D. Oklahoma

GARY B. HOBBS,

Defendant - Appellant.

(D.C. No. 93-CV-66-E) 

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is

therefore ordered submitted without oral argument.

In July 1996, Gary B. Hobbs filed a motion to vacate his sentence, or in the

alternative, a motion for correction of sentence, and a motion for release pending
1Although he filed no direct appeal, Mr. Hobbs filed two previous § 2255 petitions

in January 1993 and May 1994. These motions were denied by the district court in

February 1993 and December 1994 respectively, and each dismissal was approved by

this court. See United States v. Hobbs, No. 93-5048, 1994 WL 101893 (10th Cir. Mar.

30, 1994); United States v. Hobbs, No. 94-5185, 1995 WL 378434 (10th Cir. June 27,

1995).

In addition, Mr. Hobbs brought actions pursuant to 18 U.S.C. § 1964(c) of the

Racketeer Influenced and Corrupt Organizations Act (“RICO”) and various pendent state

claims, which were combined in Hobbs v. Security National Bank of Sapulpa, Okla., Nos.

93-5149, 93-5150, 1995 WL 7443 (10th Cir. Jan. 9, 1995). This court affirmed the

district court, agreeing that Mr. Hobbs had failed to allege acts sufficient to meet the legal

requirements for stating civil RICO claims. He also brought claims challenging the civil

forfeiture of his house, its contents, and his car, which this court concluded were waived

by Mr. Hobbs’ failure to file specific objections to the magistrate judge’s report and

recommendation. United States v. One Parcel of Real Property et al., 73 F.3d 1057 (10th

Cir.), cert. denied, 117 S. Ct. 271 (1996). Two other cases, Nos. 93-5257 and 93-5258,

were terminated procedurally for lack of jurisdiction.

2The AEDPA applies in this case because petitioner filed this § 2255 motion in the

district court after the effective date of the Act, April 24, 1996. See United States v.

Kunzman, No. 96-1310, 1997 WL 602507, at *3 n.2 (10th Cir. Oct. 1, 1997).

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proceedings, pursuant to 28 U.S.C. § 2255, in the district court. The district court

determined that Mr. Hobbs’ motion lacked merit and denied it in March 1997. 

Mr. Hobbs’ July 1996 motion is his third successive motion for relief under

§ 2255.1

Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA),2

 a second or successive motion for relief under § 2255 is not permitted

to be filed in the district court until “the applicant [moves] in the appropriate

court of appeals for an order authorizing the district court to consider the

application.” 28 U.S.C. §§ 2244(b)(3)(A), 2255. In the present case, Mr. Hobbs
3When the § 2255 petition was filed in district court without the required appellate

court authorization, the district court should have transferred the petition to this court

pursuant to 28 U.S.C. § 1631. Coleman v. United States, 106 F.3d 339, 341 (10th Cir.

1997).

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did not request permission from this court to file his third § 2255 motion in the

district court but proceeded instead to file his motion directly with the district

court. Consequently, the district court lacked jurisdiction to entertain the motion,

and we must vacate its order denying Mr. Hobbs’ motion for relief under § 2255.

Although we could remand this action for the district court to enter an order

transferring the action back to this court for proper authorization,3 we find that

such action would be a waste of judicial resources. Hence, because this appeal

from the district court’s dismissal of Mr. Hobbs’ motion is more properly

considered to be an application for leave to file a successive § 2255 motion, we

will construe it as such and proceed to determine whether Mr. Hobbs should be

permitted to file a second or successive § 2255 motion in the district court. See

Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (treating appellant’s notice

of appeal and appellate brief as an implied application to file a successive petition

pursuant to 28 U.S.C. § 2254). 

The court of appeals may authorize the filing of a second or successive

§ 2255 motion only if a three judge panel certifies that the motion contains: 

(1) newly discovered evidence that, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and
-4-

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; see also 28 U.S.C. § 2244(b)(3).

In his brief, Mr. Hobbs argues he is entitled to relief under § 2255 for the

following reasons: (1) since his last petition, he has received new evidence which

demonstrates that he is not guilty of the crimes to which he pled guilty; and (2) he

improperly received a sentence enhancement pursuant to § 3B1.1 of the

Sentencing Guidelines for his “leadership role” in the offense. See Appellant’s

Br. at vi.

We conclude that the new evidence acquired by Mr. Hobbs is irrelevant in

light of our earlier finding that his guilty plea was knowing and voluntary. See

United States v. Hobbs, No. 93-5048, 1994 WL 101893, at *3 (10th Cir. Mar. 30,

1994). By pleading guilty, Mr. Hobbs waived all nonjurisdictional defects. 

United States v. Gines, 964 F.2d 972, 977 (10th Cir. 1992); see also Mabry v.

Johnson, 467 U.S. 504, 508 (1984) (“It is well settled that a voluntary and

intelligent plea of guilty made by an accused person, who has been advised by

competent counsel, may not be collaterally attacked.”).

Furthermore, Mr. Hobbs’ argument regarding his sentencing enhancement

is procedurally barred. If it is true, as the government asserts, that Mr. Hobbs

raises this issue for the first time in this motion, see Appellee’s Br. at 3, then his
4The district court properly found that because this is a “successive § 2255

petition,” Rule 9(b), Rules governing Section 2255 Proceedings, applies. R. Vol. I, Order

of the United States District Court for the Northern District of Oklahoma, March 6, 1997,

at 2. Rule 9(b) states: 

A second or successive petition may be dismissed if the judge finds that it

fails to allege new or different grounds for relief and the prior determination

was on the merits or, if new and different grounds for relief are alleged, the

judge finds that the failure of the petitioner to assert those grounds in a prior

petition constituted an abuse of the writ.

Rule 9(b), Rules governing Section 2255 Proceedings; see also Richards, 5 F.3d at 1370

(“The abuse of the writ doctrine prohibits [a] second § 2255 motion unless [petitioner]

excuses [the] failure to raise the issue earlier by showing ‘cause for failing to raise it and

prejudice therefrom’ or by showing that a ‘fundamental miscarriage of justice would

result from a failure to entertain the claim.’”) (quoting McCleskey v. Zant, 499 U.S. 467,

494 (1991)). In its response to Mr. Hobbs’ motion, the government met its burden of

pleading abuse of the writ as required by McCleskey. See McCleskey, 499 U.S. at 494;

R. Vol. I, Government’s Response to Motion to Vacate Sentence Pursuant to 28 U.S.C.

§ 2255, at 1-5.

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claim is barred by Rule 9(b) because he could have raised this issue in his first or

second motions for relief under § 2255.4 See United States v. Richards, 5 F.3d

1369, 1370 (10th Cir. 1993). And if, as Mr. Hobbs asserts, he raised the

sentencing issue previously in his second § 2255 motion, see Appellant’s Br. at 4,

then his claim is barred by this court’s decision that the claims in his second
5

In addition, Mr. Hobbs’ argument regarding sentencing is without merit. 

Although it is true that we have held that retroactive application of the November 1990

amendment to § 3B1.1 to the disadvantage of a defendant violates the Ex Post Facto

Clause, see United States v. Saucedo, 950 F.2d 1508, 1516-17 (10th Cir. 1991), overruled

on other grounds by Stinson v. United States, 508 U.S. 36 (1993), the Ex Post Facto

Clause is not implicated here. The 1990 amendment interpreted § 3B1.1 to allow courts

to consider a defendant’s role in conduct other than that for which he was convicted,

effectively overruling our holding in United States v. Pettit, 903 F.2d 1336, 1341 (10th

Cir. 1990). However, Mr. Hobbs’ Presentence Report indicates that his § 3B1.1

enhancement was based on conduct for which he pled guilty, not “conduct other than that

for which he was convicted.” See Presentence Report ¶ 2 (stating that as part of the plea

agreement, the parties agreed that Mr. Hobbs acted as an “organizer, leader, manager, and

supervisor of any criminal activity.”). Therefore, the 1990 amendment was not used in

any way to the detriment of Mr. Hobbs, and the Ex Post Facto Clause was not violated. 

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motion constituted an abuse of the writ.5

 United States v. Hobbs, No. 94-5185,

1995 WL 378434, at *1 (10th Cir. June 27, 1995).

We conclude that Mr. Hobbs has not made a prima facie showing satisfying

the AEDPA’s requirements for a successive § 2255 motion; therefore, his motion

for permission to file successive § 2255 petitions is DENIED. The district court’s

order denying Mr. Hobbs’ § 2255 motion is VACATED, and we REMAND to the

district court with instructions to DISMISS Mr. Hobbs’ July 1996 § 2255 motion. 

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge