UNITED STATES CO URT 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 dist rict 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 instructi ons to dismiss Radcli ff’s motion for lack of jurisdiction. Radcliff was convicted in 2001 of fe deral drug and firear m 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* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### May 7, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - December 2013, Radcliff challenged his se ntence 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 ti mely 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 Ra dcliff’s motion as an unauthorized second or successive § 2255 motion, noting that he had previously f iled 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 th at transfer of the motion to this court was not in the interests of justice and that the motion should be “d enied” for lack of jurisdiction. R. at 64. The court then pr oceeded to hold that, if the court did have jurisdiction, Radcliff’s motion would be de nied 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 distri ct court’s ruling rests on procedural grounds, he must show both “that jurists of reason would find it debatable whether the petition states a va lid claim of the denial of a constitutional right and that jurists of reason would find it debatable whet her the district cour t was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000).- 3 - 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 hi s December 2013 § 2255 motion was second or successive. He claims that he never filed a first § 2255 motion. The district court’s docket, however, re flects that Radclif f did file such a motion on October 27, 2004. See R. at 50. He nonethel ess 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 a nd 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 entitl ed to a jury determinati on of the facts supporting a sentence enhancement based upo n obstruction of justice. See id. at 4-5. The district court denied Radclif f’s 2004 § 2255 motion as untimely.
See Ex. B at 2-3. A § 2255 motion that wa s dismissed as time-b arred qualifies as a first § 2255 motion, making any later mo tions challenging the same conviction second or successive. See In re Rains , 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam).- 4 - Thus, reasonable jurists woul d 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 th at reason we deny a COA. But because the district court proceeded to de ny, rather than dismiss, Ra dcliff’s motion, we vacate the district court’s judgment and remand with instructions to dismiss Radcliff’s unauthorized second or successive mo tion 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 jurisdictio n on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in en tertaining the suit.” (brackets and internal quotation mark omitted )). We grant Radcliff’s application to proceed on appeal without pr epayment of costs and fees.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk