UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff−Appellee, 

v. 

JESSIE AILSWORTH, JR., 

 Defendant−Appellant. 

No. 12-3342 

(D.C. No. 5:94-CR-40017-SAC-1) 

(D. Kan.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before KELLY, HOLMES, and MATHESON, Circuit Judges. 

 

 Jessie Ailsworth, Jr., a federal prisoner proceeding pro se, seeks to appeal the 

district court’s dismissal for lack of jurisdiction of his petition for a writ of audita 

querela under 28 U.S.C. § 1651 (All Writs Act). We deny a certificate of 

appealability (COA) and dismiss this proceeding. 

Background 

 Ailsworth was convicted by a jury of drug-trafficking and other offenses in 

1996 and was sentenced to 360 months’ imprisonment and ten years’ supervised 

 

* This order is not binding precedent except under the doctrines of law of the 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

March 14, 2013

Elisabeth A. Shumaker 

Clerk of Court
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release. The length of his prison sentence was based, in part, on the district court’s 

finding that twelve kilograms of cocaine base were attributable to him. 

After an unsuccessful appeal to this court, see United States v. Ailsworth, 

138 F.3d 843 (10th Cir. 1998), he filed a 28 U.S.C. § 2255 motion to vacate, set 

aside, or correct his sentence. The district court granted him partial relief based on 

the government’s failure to file an information stating the prior convictions that it 

would rely on in seeking a sentence enhancement, as required by 21 U.S.C. 

§ 851(a)(1). See United States v. Ailsworth, 206 F. Supp. 2d 1148, 1152-54 (D. Kan. 

2002). The government initially asserted that it had filed the information required by 

§ 851(a)(1), and the district court therefore ordered an evidentiary hearing. See id. at 

1154. But the government later confessed error and moved the court to amend 

Ailsworth’s sentence. The district court had determined that “[t]he only part of the 

defendant’s sentence affected by a prior conviction that would trigger the § 851 

notice requirement was the term of supervised release” because Ailsworth’s “term of 

custody was not enhanced as a result of any prior convictions subject to § 851 

notice.” Id. at 1152 & n.1 (footnote omitted). The court therefore entered an 

amended judgment on September 12, 2002, reducing Ailsworth’s term of supervised 

release from ten years to five years. We denied his application for a COA. 

In 2006, Ailsworth sought authorization from this court to file a second or 

successive § 2255 motion arguing that his sentence violated United States v. Booker, 

543 U.S. 220 (2005). We denied authorization because Booker was not made 
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retroactive to cases on collateral review. In 2008, he moved for a sentence reduction 

under 18 U.S.C. § 3582(c)(2), seeking retroactive application of an amendment to the 

sentencing guidelines applicable to crack cocaine offenses. The district court denied 

the motion, and we affirmed. 

Ailsworth’s petition for a writ of audita querela under the All Writs Act is his 

latest attempt to obtain a reduction of his prison sentence. He argued that, in ruling 

on his § 2255 motion and finding error with respect to the § 851 sentencing 

enhancement, the district court was required to vacate his entire sentence and proceed 

with resentencing, rather than amending the judgment to reduce only his term of 

supervised release. He asserted that, due to the Supreme Court’s intervening decision 

in Apprendi v. New Jersey, 530 U.S. 466 (2000), his prison sentence would have been 

shortened upon resentencing in 2002. Specifically, he contended that he could not be 

resentenced based on the district court’s finding that twelve kilograms of crack 

cocaine were attributable to him when the jury only found him guilty of crack 

cocaine offenses involving 33.81 grams. Ailsworth maintained that, since 2002, he 

has been serving an unconstitutional sentence under Apprendi. The district court 

concluded that Ailsworth’s petition was an unauthorized second or successive § 2255 

motion and dismissed it for lack of jurisdiction. 

Discussion 

Ailsworth must obtain a COA to pursue an appeal. See United States v. 

Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling 
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rests on procedural grounds, he must show both “that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court was 

correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 

(emphasis added). Ailsworth meets one, but not both, parts of this standard. 

Addressing the second part, we conclude that jurists of reason would find it 

debatable whether the district court’s procedural ruling in this case was correct. As a 

result of Ailsworth’s first § 2255 motion, the court entered an amended judgment 

reducing the length of his term of supervised release. In Magwood v. Patterson, the 

Supreme Court held that “where . . . there is a new judgment intervening between the 

two habeas petitions, an application challenging the resulting new judgment is not 

‘second or successive’ at all.” 130 S. Ct. 2788, 2802 (2010) (citation and quotation 

omitted). The Court’s decision addressed the meaning of “second or successive” in 

28 U.S.C. § 2244(b), as it applies to habeas petitions under 28 U.S.C. § 2254. See 

Magwood, 130 S. Ct. at 2796-97. It concluded that use of the term “judgment” in 

§ 2254(b) was “significant” and held “that the phrase ‘second or successive’ must be 

interpreted with respect to the judgment challenged.” Id. at 2797. 

We have applied the holding in Magwood to conclude that a § 2255 motion 

filed after an amended judgment was not second or successive under § 2255(h). See 

United States v. McGaughy, 670 F.3d 1149, 1159 n.7 (10th Cir. 2012) (citing 

Magwood and concluding, without further discussion, that a second § 2255 claim was 
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not second or successive “because it relate[d] to a new sentence”). Three of our 

sister circuits have also extended the applicability of Magwood to motions under 

§ 2255. See Suggs v. United States, 705 F.3d 279, 282-85 (7th Cir. 2013); In re 

Lampton, 667 F.3d 585, 587-90 (5th Cir. 2012); Johnson v. United States, 623 F.3d 

41, 45-46 (2d Cir. 2010). Ailsworth’s petition for a writ of audita querela challenged 

the district court’s entry of the amended judgment without first providing him a full 

resentencing. Under the holding in Magwood, it is debatable whether the district 

court was correct in deeming his petition to be an unauthorized second or successive 

§ 2255 motion because he had not previously filed a § 2255 motion challenging the 

amended judgment. 

To obtain a COA, however, Ailsworth must also demonstrate that reasonable 

jurists would debate whether his petition states a valid claim of the denial of a 

constitutional right. He contends that he was entitled to a full resentencing once the 

district court determined it had erred in enhancing his sentence. He asserts, 

In 2002 Ailsworth challenged his sentence, [arguing that it] had 

been impermissibly enhanced via application of a 21 U.S.C. § 851 

enhancement that should not have been applied. The GOVERNMENT 

CONFESSED ERROR! The 28 U.S.C. § 2255 challenge should have 

resulted in the 30 year sentence being VACATED, to the end that a 

resentencing would occur. This did not occur. Rather, the government 

orchestrated the District Court’s amending the original judgment, 

affecting only Ailsworth’s supervised release, and affecting nothing of 

the sentence of incarceration originally imposed. 

Application for COA at 15. But Ailsworth does not dispute the district court’s 

conclusion that the § 851 error affected only his term of supervised release. He states 
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only that vacating the entire sentence is “what is done in 28 U.S.C. § 2255 cases.” 

Id. at 16. His contentions fail to make the showing necessary to obtain a COA 

because nothing about the district court’s decision to amend the judgment with regard 

to his term of supervised release, rather than grant him a full resentencing, implicates 

the denial of a constitutional right. Cf. Dulworth v. Jones, 496 F.3d 1133, 1138 

(10th Cir. 2007) (denying COA because district court’s denial of motion for costs did 

not implicate a denial of a constitutional right). 

Conclusion 

 Because Ailsworth has not demonstrated with respect to his claim that “jurists 

of reason would find it debatable whether the petition states a valid claim of the 

denial of a constitutional right,” Slack, 529 U.S. at 484, we deny his application for a 

COA and dismiss the appeal. Ailsworth’s motion for leave to proceed on appeal 

without prepayment of costs or fees is granted. His motion to compel a response 

from the United States is denied. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk