UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CARLOS GASCA, a/k/a Chino, Defendant-Appellant. No. 13-3227 (D.C. Nos. 2:13-CV-02435-JWL & 2:03-CR-20085-JWL-2) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BRISCOE , Chief Judge, EBEL and BACHARACH , Circuit Judges.

Carlos Gasca, a federa l prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the distri ct court’s decision di smissing for lack of jurisdiction his second motion for relief under 28 U.S.C. § 2255. We deny a COA and dismiss this matter. In 2004, Mr. Gasca pleaded guilty to c onspiracy to possess with intent to distribute methamphetamine. He was sentenced to 360 m onths’ imprisonment. He filed an appeal, but we dismissed it because he had waived his appellate rights in his plea agreement. In 2006, he filed a § 2255 motion to vacate, set aside or correct his

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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

### November 25, 2013 Elisabeth A. Shumaker Clerk of Court- 2 - sentence. The district court denied the motion, and we deni ed his request for a COA. See United States v. Gasca , 236 F. App’x 459, 4 60 (10th Cir. 2007). In August 2013, Mr. Gasca filed a se cond § 2255 motion. The district court concluded that this moti on was an unauthorized seco nd or successive § 2255 motion and dismissed it for lack of jurisdiction. Mr. Gasca now seeks a COA to appeal from that decision. To obtain a COA, Mr. Ga sca must show that “juris ts of reason would find it debatable whether the district court wa s correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) . A prisoner may not file a second or successive § 2255 motion unless he first obtains an order from the ci rcuit court authorizing the district court to consider the mo tion. 28 U.S.C. § 2244(b)(3)(A); id . § 2255(h). Absent such authorization, a district court lacks jurisdiction to a ddress the merits of a second or successive § 2255 motion. In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (p er curiam). In his second § 2255 motion, Mr. Gas ca argued that he wa s entitled to relief from his sentence based on the Supr eme Court’s recent decision in Alleyne v. United States , 133 S. Ct. 2151 (2013). As the district court correctly explained, however, Mr. Gasca had already filed one § 2255 motion, and he was therefore required to obtain authorization from this court before he could file a se cond § 2255 motion. Because he had not done so, the district court dismissed the motion for lack of jurisdiction. See Cline , 531 F.3d at 1251.- 3 - The district court also concluded that it was not in the inte rest of justice to transfer the motion to this court because Mr. Gasca’s cl aim was not likely to have merit. As the di strict court noted, Alleyne has not been made re troactive to cases on collateral review. See R., Vol. 1 at 59 (citing Simpson v. United States , 721 F.3d 875, 876-77 (7th Cir. 2013)). We recently joined the Seventh Circuit in holding that Alleyne does not meet the standard for aut horizing second or successive claims because the Supreme Court has not made Alleyne retroactive to cases on collateral review as required by § 2255(h)(2). See In re Payne , ____ F.3d ____, 2013 WL 5200425, at *1-2 (10th Cir. Sept. 17, 2013). Reasonable jurists could not debate that the district court was correct in its procedural ruling to dismiss Mr. Gas ca’s second § 2255 motion for lack of jurisdiction. Accordingly, we deny a COA and dismiss this matter.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk