*

 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. The case therefore is submitted

without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 24 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-3102

JESUS AVILA-AVILA, a.k.a. Jesus Avila,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 93-CR-10073-02-B)

Submitted on the briefs:*

Ernest H. Moulos, Wichita, Kansas, for Defendant-Appellant.

Jackie N. Williams, United States Attorney, and Lanny D. Welch, Assistant United

States Attorney, Wichita, Kansas, for Plaintiff-Appellee.
2

Before ANDERSON, TACHA, and EBEL, Circuit Judges.

PER CURIAM.

Defendant Jesus Avila appeals from the district court’s February 21, 1997 Order

denying his motion under 28 U.S.C. § 2255 as “a second motion, as untimely under 28

U.S.C. § 2255 as amended by [the Antiterrorism and Effective Death Penalty Act of 1996,]

and as completely without merit.”

In 1994, Defendant Avila entered a conditional guilty plea to one count of possession

with intent to sell heroin and one count of illegal reentry of a deported alien. He was

sentenced to 188 months followed by eight years of supervised release. He appealed the

denial of his motion to suppress. In an unpublished opinion, this court affirmed the district

court. United States v. Avila, No. 94-3273, 1995 WL 238578 (10th Cir. Apr. 18, 1995), cert.

denied, 116 S.Ct. 233 (1995). 

In May 1996, Avila filed his first motion under 28 U.S.C. § 2255 in the Western

District of Missouri. In August 1996, the motion was transferred to the District of Kansas.

In this motion, he claimed the district court improperly calculated the amount of drugs upon

which his sentence was based. The motion was denied. United States v. Avila, No. 93-CR10073-02 (D. Kan. Dec. 3, 1996)(unpublished). No appeal was taken.
3

In February 1997, he filed his second motion under 28 U.S.C. § 2255, claiming his

plea was involuntary based on ineffective assistance of counsel. The motion was denied.

United States v. Avila, No. 93-CR-10073-02 (D. Kan. Feb. 21, 1997)(unpublished). This

appeal ensued.

The § 2255 motion filed in February 1997 was Defendant Avila’s second motion for

purposes of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Because it was

filed several months after the April 24, 1996 effective date for the AEDPA, Avila was

required to comply with the Act’s relevant provisions by obtaining prior authorization from

this court before filing it. He failed to do. Thus, the district court lacked jurisdiction to

decide the second § 2255, and the February 21, 1997 Order disposing of this unauthorized

motion must be vacated. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997). 

However, we will construe Defendant Avila’s notice of appeal and appellate opening

brief as an implied application for leave to file a second § 2255 in the district court. See

Pease, 115 F.3d at 764.

In the implied application, Avila contends his plea was involuntary based on

ineffective assistance of counsel. He argues that he was coerced by his court-appointed

counsel into entering a guilty plea “because of the fear that a life sentence would be

imposed,” see appellate opening brief at 3, that he would not have entered a plea if properly

advised of the sentence that would be imposed under the guidelines, id. at 6, and that this
4

claim could not have been discovered “through the exercise of due diligence” until the

transcripts of the plea and sentencing hearings “became available for appellate purposes,”

id. at 2.

We have thoroughly reviewed the implied application and conclude Defendant Avila

has failed to make a prima facie showing that satisfies the AEDPA’s criteria. See 28 U.S.C.

§ 2244(b)(3)(C). His claim does not rely on newly discovered evidence that would be

sufficient to establish by clear and convincing evidence that no reasonable factfinder would

have found him guilty of the criminal offenses, 28 U.S.C. § 2255(1), and does not rely on a

new rule of constitutional law made retroactive to cases on collateral review by the Supreme

Court, § 2255(2). Moreover, Avila could have raised this claim in his first § 2255.

Accordingly, the district court’s February 21, 1997 Order disposing of Defendant

Avila’s unauthorized second motion under 28 U.S.C. § 2255 is VACATED, and Defendant’s

implied application for leave to file a second § 2255 in the district court is DENIED.