UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RAFAEL RAMOS, Defendant - Appellant. No. 18-1316 (D.C. Nos. 1:18-CV-00054-CMA & 1:14-CR-00337-CMA-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McHUGH , and EID , Circuit Judges.

________________ _________________ Rafael Ramos, a federal prisone r proceeding pro se, filed a 28 U.S.C. § 2255 motion to vacate, set aside or co rrect his sentence. The distr ict court determined it lacked jurisdiction to considerthe § 2255 motion because it wa s an unauthorized second or successive § 2255 moti on. Mr. Ramos filed a notice o f appeal from the district court’s decision. The d istrict court granted a certif icate of appealability on the question of whether Mr. Ramos ’s first § 2255 motion, which he voluntarily

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 3, 2019 Elisabeth A. Shumaker Clerk of Court2 withdrew, should count for determ ining whether a subsequent mot ion should be considered second or successive. Exercising jurisdiction pursu ant to 28 U.S.C. § 1291, we affirm. I. Background Mr. Ramos pleaded guilty to posse ssion of a firearm by a convic ted felon in violation of 18 U.S.C . § 922(g)(1), after he provided four fire arms to another individual for sale to an underc over officer. The district cou rt sentenced him to 84 months’ imprisonment, which was the bottom of the proposed a dvisory Sentencing Guidelines range of 84 to 105 months. He did not ap peal. In June 2016, Mr. Ramos filed a pro se § 2255 motion. He asser ted he was entitled to relief based on the Supreme Court’s decision in Johnson v. United States , 135 S. Ct. 2551 (2015), because h e was sentenced based on the u nconstitutional residual clause in the Armed Ca reer Criminal Act (ACCA). The g overnment argued in its response that Johnson did not apply to Mr. Ramos because he was not sentenced under the ACCA, nor did he receive a sentence enhance ment under the Sentencing Guidelines that was based on a conviction for a prio r crime of violence. 1 A few months later, Mr. Ramos fil ed a motion to withdraw his § 2255 motion. In the motion, he stated that “[ u]pon further consideration and examination” of his § 2255 motion, “it has become cl ear to the defendant that the J ohnson case does not

1 The presentence investigation re port recommended enhancing Mr. Ramos’s sentence because (1) the offense involved three to seven firear ms, see U.S. Sentencing Guidelines Manual § 2K2.1(b)(1)(A) (U.S. Sentencing Comm’n 2014); and (2) one of the firearms had an obliterated serial number, see id . § 2K2.1(b)(4)(B).3 apply to his case . . . or convi ction.” R. at 89. He further stated that “with the help of an interpreter[,] [he] read the Government’s Response . . . and has become convinced that in fact the Johns on decision does not apply to h is case.” Id . at 90. He also indicated that he had been given “advice by an attorney to withdraw his motion under Johnson in order to preser ve that right for a better issu e in the future.” Id . at 89. The district court gran ted the motion to withdraw. In January 2018, Mr. Ramos file d another § 2255 motion. He arg ued he received ineffective assistance of counsel because his attorney misled him into believing he was going to receive a sentence of 46 to 57 months when Mr. Ramos was accepting the plea agreement . In response, the government asserted that the motion should be dismissed for l ack of jurisdiction because it was an unauthorized second § 2255 motion. The governm ent contended that Mr. Ramos’ s “previous § 2255 motion, which he withdrew after realizing, and affirmati vely acknowledging, that the motion was meritless[ ,] . . . counts for “purposes of the ‘second or successive’ analysis.” Id . at 103. The district court agreed with t he government that it lacked ju risdiction over Mr. Ramos’s § 2255 motion because it was an unauthorized second or successive § 2255 motion. Mr. Ramos now appeals that decision. II. Discussion Under § 2255, a prisoner sentenced by a federal court may move to have that sentence vacated, set aside or co rrected. 28 U.S.C. § 2255(a). A prisoner may not, however, file a second or successi ve § 2255 motion unless he fi rst obtains an order4 from the circuit cour t authorizing the di strict court to consid er the motion. 28 U.S.C. § 2244(b)(3)(A); id . § 2255(h). Absent such authori zation, a district court lacks jurisdiction to address the meri ts of a second or successive § 2255 motion. See In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). “[T]o avo id having claims barred as successive, federal pr isoners seeking relief under § 2255 generally must marshal all of their claims into one collateral attack on theirconviction and sentence.” United States v. Kelly , 235 F.3d 1238, 1241 (10th Cir. 2000). But not all first-in-time § 2255 motions will lead to a second-in-time moti on being treated as a second or successive § 2255 motion. See Haro-Arteaga v. United States , 199 F.3d 1195, 1196 (10th Cir. 1999) (id entifying types of cases where t he first § 2255 motion did not count as a first motion for purposes of determining whe ther a later motion was second or successive). Mr. Ramos contends that the dist rict court erred in treating hi s second-in-time § 2255 motion as an unauthorized second or successive motion be cause: (1) an inmate paralegal misled him in to filing his first § 2255 motion with a single claim that had no relevance to his cas e; (2) the district court erred in failing to warn him about the consequences of wit hdrawing his initial § 2255 motion ; and (3) there is a circuit split as to whether a m otion that is voluntarily withdr awn should count as an initial § 2255 motion. We are not persuaded by Mr. Ramos’s arg uments; instead, we agree with the district court that Mr. Ramos’s voluntarily-with drawn § 2255 motion should count as a first motion for purposes of the second or su ccessive analysis. The5 district court therefor e properly determined it lacked jurisdic tion to consider Mr. Ramos’s unauthorized second or successive § 2255 motion. We will address Mr. Ramos’s issues in reverse order. Contrary to his assertion, there is no circuit sp lit on the issue of whether a motion that is voluntarily withdrawn should count as an in itial § 2255 motion for purposes of the second or successive analysis. All of the courts to consider the issue h ave looked at the circumstances of each individua l case. In doing so, courts hav e sometimes decided that a voluntarily-withdrawn § 22 55 motion counts when determin ing whether a later motion is second or successive, a nd courts have sometimes decid ed that a voluntarily-withdrawn § 2255 mo tion does not count for second o r successive purposes. But the decisions are b ased on the facts of the case , not any conflicting legal analysis. For example, in a trio of cases in the Seventh Circuit, that court twice concluded that the circumstanc es supported coun ting the volunta rily-withdrawn § 2255 motion as a fir st motion for second or successive purpos es, see Potts v. United States , 210 F.3d 770, 770-71 (7th Cir. 2000), and Felder v. McVicar , 113 F.3d 696, 698 (7th Cir. 1997), but in between those two cases, the c ourt determined that the circumstances surrounding th e voluntarily-withdrawn § 2255 motion did not support counting it as a first m otion for second or successive purposes, see Garrett v. United States , 178 F.3d 940, 942-43 (7th Cir. 1999). One of the factors courts have f ound determinative in consideri ng how to treat a voluntarily-withdrawn § 2255 mo tion is whether the moving par ty conceded the motion lacked merit. See , e.g ., Provenzale v. United States , 388 F. App’x 285, 2876 (4th Cir. 2010) (finding that pe titioner’s “original § 2255 mot ion does not bar the filing of another § 2255 motion without pre-filing authorizatio n” because he “did not concede upon withdrawal of his first § 2255 motion that the mot ion lacked merit”); Thai v. United States , 391 F.3d 491, 496 (2d Cir. 2004) (“The circumstances of the instant case do not provide a cle ar indication that Thai regard ed his initial petition as meritless when he moved to withdr aw it. Accordingly, we hold t hat the most recent petition is not a second or s uccessive petition[.]”); Garrett , 178 F.3d at 942, 943 (holding that current§ 2255 motion was not a successive motion because petitioner had “never conceded defeat” when he moved to withdraw his earli er motions and there was “no indication that w ithdrawal was to obtain a tactic al advantage in the face of impending defeat”); Felder , 113 F.3d at 698 (findi ng that petitioner’s concession that he could not meethis burden of proof at an evi dentiary hearing was “an admission of defeat” and conc luding that “a petitioner for habeas corpus cannot be permitted to thwart the lim itations on the filing of second or successive motions by withdrawing his first petiti on as soon as it becomes evident that the district court is going to dismiss it on the mer its”). The cases from the cir cuits noted above are consistent with our approach to the issue. In Haro-Arteaga , the petitioner had filed two prior § 2255 motions, which he then voluntarily withdrew. 199 F.3d at 1195. At the time he w ithdrew the motions, the petitioner had not conceded a ny claim nor had the district court engaged in substantive review; we therefo re concluded the petitioner’s sub sequent motion should not be treated as a second or successive motion. Id . at 1197. In contrast, Mr. Ramos7 did concede his first § 2255 mo tion lacked merit when he moved to withdraw it. In his first § 2255 motion, he brou ght a single claim, arguing he was entitled to sentencing relief based on Johnson . But in his motion to wit hdraw his first § 2255 motion, he admitted that Johnson “does not apply to his cas e . . . or conviction.” R. at 89. Given these circumst ances, the district court proper ly determined that Mr. Ramos’s voluntarily-withdrawn § 2255 motion should count fo r purposes of the second or successive analysis. Mr. Ramos also argues that the d istrict court erred in failing to warn him about the consequences of withdrawi ng his initial pro se § 2255 motio n, relying on the Supreme Court’s decision in Castro v. United States , 540 U.S. 375 (2003). But Castro does not apply here b ecause it relates to situations where a p ro se prisoner files a motion that he does not l abel as a § 2255 motion, but t he district court recharacterizes it as a § 2255 motion. The Supreme Court held that a district court: cannot so recharacterize a pro se litigant’s motion as the liti gant’s first § 2255 motion unless the court informs the lit igant of its intent to recharacterize, warns the litigant that the recharacterization will subject subsequent § 2255 motions to th e law’s ‘second or successive’ r estrictions, and provides the litigant with an opportunity to withdraw, or t o amend, the filing. 540 U.S. at 377. Here, Mr. Ramos ’s initial motion was labeled a § 2255 motion; there was no recharacterization. Castro does not obligate district cour ts to warn pro se litigants about the potential second or successive consequences of withdr awing an initial § 2255 motion.8 Finally, Mr. Ramos asserts he was misled by a fellow inmate int o believing he had a viable claim under Johnson . He contends that if he “had not been totally dependent on the legal advice of his fellow ‘inmate paralegal,’ he would not have submitted such a ridiculous issue which had absolutely no beari ng on his case but would have brought the issues dis cussed herein.” Aplt. Br. at 7. But Mr. Ramos cites to no legal authority—and we are aware of none—that indic ates this type of information is relevant or permi tted to be considered when dete rmining whether Mr. Ramos’s initial § 2255 moti on should count for purposes of the second or successive analysis. III. Conclusion For the foregoing reasons, we affi rm the district court’s deter mination that it lacked jurisdiction to consider t he merits of Mr. Ramos’s § 225 5 motion because it was an unauthorized second or su ccessive § 2255 motion. We gra nt Mr. Ramos’s motion to proceed on appeal witho ut prepayment of costs or fees

. Entered for the Court Per Curiam