UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

BRUCE SEARS, 

 Defendant - Appellant.

No. 23-3158

(D.C. Nos. 6:23-CV-01117-JWB &

6:04-CR-10174-JWB-1)

(D. Kan.)

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ORDER DENYING CERTIFICATE OF APPEALABILITY*

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Before MATHESON, KELLY, and MORITZ, Circuit Judges.

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Before a federal inmate can file a second or successive 28 U.S.C. § 2255 motion, 

he or she must obtain prior authorization from the appropriate court of appeals. 

§ 2255(h). If the inmate files a second or successive § 2255 motion without 

authorization, the district court lacks jurisdiction to hear it. In re Cline, 531 F.3d 1249, 

1251 (10th Cir. 2008). But not every § 2255 motion filed second or later in time will be 

considered second or successive. See Panetti v. Quarterman, 551 U.S. 930, 944 (2007). 

If a claim was not ripe when the inmate’s first § 2255 proceedings concluded, for 

* This order is not binding precedent except under the doctrines of law of the case,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

January 8, 2024

Christopher M. Wolpert

Clerk of Court

Appellate Case: 23-3158 Document: 010110979768 Date Filed: 01/08/2024 Page: 1
2

example, the claim will not be considered second or successive if the inmate asserts it 

once it ripens. See In re Weathersby, 717 F.3d 1108, 1110 (10th Cir. 2013).

Bruce Sears is serving a life sentence in federal prison for committing a serious 

violent felony with at least two prior convictions for serious violent felonies. See 

18 U.S.C. § 3559(c)(1). He recently filed a § 2255 motion, arguing that his Kansas 

robbery convictions (used as predicate convictions for his life sentence) do not qualify as 

serious violent felonies. He acknowledged that he had already sought relief through an 

earlier § 2255 motion, but he argued that his current claim did not become ripe until the 

Supreme Court issued its decision in Borden v. United States, 141 S. Ct. 1817 (2021).

1

 

For that reason, he concluded, his motion should not be considered second or successive.

The district court rejected Mr. Sears’s argument that his claim was not ripe until 

the decision in Borden came down. Treating Mr. Sears’s motion as an unauthorized 

second or successive one, the district court dismissed it for lack of jurisdiction.

Mr. Sears cannot appeal without a certificate of appealability. See 28 U.S.C. 

§ 2253(c)(1)(B). To obtain one, he must show that reasonable jurists would find it 

debatable whether the district court’s procedural ruling was correct.2

 See Slack v. 

McDaniel, 529 U.S. 473, 478 (2000).

1 Borden held that an offense does not count as a violent felony under the Armed 

Career Criminal Act if it requires a mens rea of mere recklessness. 141 S. Ct. at 

1821–22.

2 Mr. Sears represents himself, so we construe his filings liberally. See Hall v. 

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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The district court’s ruling is beyond debate. What makes a claim unripe is that its 

factual basis does not yet exist, not that caselaw does not yet support the claim. See 

United States v. Williams, 790 F.3d 1059, 1068–69 (10th Cir. 2015). Mr. Sears’s current 

claim asserts that his Kansas robbery convictions do not qualify as serious violent 

felonies and so cannot support a mandatory life sentence. That claim became ripe when 

the district court imposed the life sentence.3

 Because Mr. Sears’s claim was ripe when he 

filed his first § 2255 motion, the district court correctly treated his latest motion as an 

unauthorized second or successive one. 

We deny Mr. Sears’s application for a certificate of appealability. We grant his 

motion to proceed without prepaying costs or fees. We dismiss this matter.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk

3 Mr. Sears’s motion also claimed (with less discussion) that the Kansas robbery 

convictions should not expose him to the career-offender provision of the sentencing 

guidelines. Our analysis of his primary claim (challenging his mandatory life sentence) 

also applies to his claim that he does not qualify as a career offender, for both claims 

became ripe when the district court imposed the sentence. 

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