UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JASON CLAYCOMB, Defendant - Appellant. No. 18-8048 (D.C. No. 2:07-CR -00196-CAB-5) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY 

________________ _________________ Before LUCERO , HOLMES , and McHUGH , Circuit Judges.

________________ _________________ Jason Claycomb, proceeding pro se , seeks a certif icate of appea lability (COA) to appeal the district court’s or der construing his Fed. R. Civ. P . 60(b) motion as an unauthorized second or successive 28 U.S.C. § 2255 motion and d ismissing it for lack of jurisdiction. We deny a COA and dismiss this matter. Mr. Claycomb was convicted afte r a jury trial of (1) conspiracy to possess with intent to distribute, and to di stribute, methamphetamine and co caine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)( 1)(A), and 846; (2) possession o f a machine gun in furtherance of a drug trafficki ng crime, in violation of 18 U.S .C. § 924(c)(1)(B)(ii); and

 This order is not binding prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, 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 31, 2019
Elisabeth A. Shumaker Clerk of Court2 (3) unlawful possession of an unre gistered firearm, in violatio n of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5 871. He was sentenced to 60 years’ impr isonment. We affirmed his convictions and sentence on direct appeal. United States v. Claycomb , 372 F. App’x 832, 841 (10th Cir. 2010). In 2011 , Mr. Claycomb filed his fir st § 2255 motion based on several claims of ineffective a ssistance of counsel. The distr ict court partially granted the motion and vacated his convicti on for unlawful possession of an unregistered firearm. Mr. Claycomb has since filed a number of unsuccessful post-judg ment motions attempting to collaterally att ack his convictions. Most recent ly, he filed the underlying Rule 60(b) motion in which he re quested reopening of his prior proceedings under § 2255. The district court dete rmined that the motion was an u nauthorized second or successive § 2255 motion and dism issed it for lack of jurisdict ion. Mr. Claycomb now seeks a COA un der 28 U.S.C. § 2253(c) to appea l from that dismissal. To obtain a COA, Mr. Claycomb must show “that juris ts of reason would find it debatable whether the petition states a valid claim of the d enial of a constitutional right and that jurists of re ason would find it data ble whether the di strict court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000 ). We need only reach the second component of this sta ndard to determine Mr. Claycomb has not satisfied his burden. See id. at 485. A pleading should be treated a s a second or successive § 2255 motion, rather than a true 60(b) motion, “if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying conviction.” Spitznas v. Boone , 464 F.3d 1213, 1215 (10th Cir. 2006). “It is the relief sought, not [the] pl eading’s title, that determines3 whether the pleading is a § 2255 motion.” United States v. Nelson , 465 F.3d 1145, 1149 (10th Cir. 2006). A pri soner may not file a second or successi ve § 2255 motion without authorization from this court . 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). The district court lacks jurisdiction to cons ider the merits of a second or successive § 2255 motion absent authorization. In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). In his motion filed in distric t court, Mr. Claycomb sought equi table relief under Rule 60(b) “based upon fraud and multiple misrepresentations” c ommitted by the government. R., Vol. I at 165. He a sserted he had new evidenc e related to the chain of custody of drug evidence used aga inst him in his criminal case and requested reopening of his prior § 2255 proceedings and an evidentiary hearing on t hat basis. The district court concluded Mr. Claycomb’s motion attempts to offer new evi dence to dispute his sentence and is therefore challe nging his underlying conviction rather than any procedural rulings of his prio r habeas proceedings, and is ther efore a second or successive § 2255 motion. Because Mr. Claycomb had not obtaine d the proper authorization from this court to file a second or successive § 2255 motion, the district court dismissed the motion for l ack of jurisdiction and denied a COA. In his COA application to this court, Mr. Claycomb argues the p urported new evidence regarding the chain of c ustody of drug ev idence in his underlying criminal case necessitates an evidentiary heari ng to determine whether a new trial or reopening of his § 2255 proceedings is warranted. But he fails to offer any arg ument why the district court was incorrect in its proce dural ruling construing his mot ion as a second or successive § 2255 motion over whi ch it lacked jurisdiction. In fact, in arguing the district4 court erred in declining to con duct an evidentiary hearing, Mr. Claycomb cites the standard for determining whether t o grant an evidentiary hearin g under 28 U.S.C. § 2255(b), which supports the di strict court’s determination th at he intended to file his motion under § 2255, rather tha n under Rule 60(b). Reasonable jurists could not debate that the district court was co rrect in its procedural ruling to construe his 60(b) motion as an unauthorized second or successi ve § 2255 motion and dismiss it for lack of jurisdiction. Accordingly, we de ny a COA and dismiss this matt er.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk