UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

JOHN WESLEY RADCLIFF, 

 Defendant-Appellant. 

No. 14-1076 

(D.C. Nos. 1:13-CV-03331-PAB & 

1:99-CR-00061-PAB-2) 

(D. Colo.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before HOLMES, EBEL, and PHILLIPS, Circuit Judges. 

 

 John Wesley Radcliff, a federal prisoner proceeding pro se, seeks a certificate 

of appealability (COA) to appeal the district court’s denial of his motion filed 

pursuant to 28 U.S.C. § 2255. We deny a COA, but we also vacate the district 

court’s judgment and remand with instructions to dismiss Radcliff’s motion for lack 

of jurisdiction. 

 Radcliff was convicted in 2001 of federal drug and firearm offenses. He 

appealed, and this court affirmed his convictions and sentence. United States v. 

Radcliff, 331 F.3d 1153, 1164 (10th Cir. 2003). In the § 2255 motion he filed in 

 

* This order is not binding precedent except under the doctrines of law of the 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

May 7, 2014

Elisabeth A. Shumaker 

Clerk of Court
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December 2013, Radcliff challenged his sentence imposed for his 2001 convictions, 

citing the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 

(2013). He argued that his motion was timely under § 2255(f)(3) because he claimed 

that Alleyne recognized a new right that has been “made retroactively applicable to 

cases on collateral review.” 

 The district court first construed Radcliff’s motion as an unauthorized second 

or successive § 2255 motion, noting that he had previously filed a § 2255 motion in 

2004. The court stated that, without this court’s authorization, it had no jurisdiction 

to consider the merits of the claims Radcliff asserted in his second or successive 

§ 2255 motion. The court next determined that transfer of the motion to this court 

was not in the interests of justice and that the motion should be “denied” for lack of 

jurisdiction. R. at 64. The court then proceeded to hold that, if the court did have 

jurisdiction, Radcliff’s motion would be denied as untimely. The court ultimately 

stated that the motion was “denied” “[f]or the reasons stated.” Id. at 61. The 

judgment denied the motion and dismissed the action. 

Radcliff must obtain a COA to pursue an appeal. See United States v. Harper, 

545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling rests on 

procedural grounds, he 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 reason would find it debatable whether the district court was correct in its 

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 
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 Radcliff first argues that the district court erred in holding that his motion was 

untimely because it misconstrued § 2255(f)(3). But a district court does not have 

jurisdiction to address the merits of an unauthorized second or successive § 2255 

motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). Radcliff 

therefore disputes that his December 2013 § 2255 motion was second or successive. 

He claims that he never filed a first § 2255 motion. 

The district court’s docket, however, reflects that Radcliff did file such a 

motion on October 27, 2004. See R. at 50. He nonetheless maintains that his 2004 

motion was not filed pursuant to § 2255. We have reviewed Radcliff’s 2004 filing 

and conclude that it was a § 2255 motion. His motion and the district court’s order 

denying it are attached to this order as Exhibits A and B. Radcliff filed the motion 

on a form citing § 2255, and he stated he was challenging his 2001 convictions. 

See Ex. A at 1. He then cited Blakely v. Washington, 542 U.S. 296 (2004), for the 

proposition that he was entitled to a jury determination of the facts supporting a 

sentence enhancement based upon obstruction of justice. See id. at 4-5. 

The district court denied Radcliff’s 2004 § 2255 motion as untimely. 

See Ex. B at 2-3. A § 2255 motion that was dismissed as time-barred qualifies as a 

first § 2255 motion, making any later motions challenging the same conviction 

second or successive. See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) 

(per curiam). 
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Thus, reasonable jurists would not debate the district court’s procedural ruling 

that it lacked jurisdiction to consider Radcliff’s latest § 2255 motion because it had 

not been authorized by this court. For that reason we deny a COA. But because the 

district court proceeded to deny, rather than dismiss, Radcliff’s motion, we vacate the 

district court’s judgment and remand with instructions to dismiss Radcliff’s 

unauthorized second or successive motion for lack of jurisdiction. See Bender v. 

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (“When the lower federal 

court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely 

for the purpose of correcting the error of the lower court in entertaining the suit.” 

(brackets and internal quotation mark omitted)). We grant Radcliff’s application to 

proceed on appeal without prepayment of costs and fees. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk