UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JAMES E. BAKER, Defendant - Appellant. No. 16-3001 (D.C. No. 6:06-CR-10129-JTM-1) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before BACHARACH , O’BRIEN , and MORITZ , Circuit Judges.
Defendant-Appellant James E. Baker seeks a certificat e of appealability (COA) to challenge the district court’s di smissal of his motion to amend his motion under 28 U.S.C. § 2255 and its denial of his motion for reconsideration. See 28 U.S.C. §§ 2244(b)(3), 2255(h); In re Cline , 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). We deny the request for a COA. Baker was convicted in 2006 of being a felon in possession of ammunition. He was sentenced under the Armed Car eer Criminal Act (ACCA) based on three prior felony burglary convictio ns. Following an unsuccessf ul direct appeal, Baker

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### April 7, 2016 Elisabeth A. Shumaker Clerk of Court- 2 - filed his first § 2255 motion in May 2009. The district cour t denied relief and this court denied a COA, United States v. Baker , 371 F. App’x 987, 98 8 (10th Cir. 2010). Since then, Baker has filed a host of post-conviction motions that the district court has construed as unauthorized second or successive § 2255 motions and dismissed. Each time Baker has sought to appeal a dismissal, we have denied him a COA. Baker also has filed four motions seeking authorization from this court to file a second or successive § 2255 motion. We have denied all of his requests. Undeterred, Baker filed a motion in Oc tober 2015 seeking to amend his § 2255 motion based on the Supreme C ourt’s recent decision in Johnson v. United States , 135 S. Ct. 2551, 2557 (2015), holding that the residual clause of the ACCA is unconstitutionally vague. Ba ker sought to add a clai m that his sentence was improperly enhanced under the ACCA becau se none of his prior convictions would qualify as a violent felony in the absence of the residual cl ause. He argued that his amendment could relate back to his orig inal § 2255 motion under Fed. R. Civ. P. 15(c). Not surprisingly, the district court construed the motion to amend as yet another unauthorized second or successive § 2255 motion and dismissed it for lack of jurisdiction. Baker then filed a motion for reconsideration, which the district court noted was also second or successive and de nied. And so we co me to the current proceeding, in which Baker ch allenges the district court’s dismissal of his motion to amend and the denial of his motion for reconsideration.- 3 - To appeal, Baker must first obtain a COA under 28 U.S.C. § 2253(c)(1)(B). See United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s dismissal for lack of ju risdiction rests on procedural grounds, Baker must show both “that jurist s of reason would find it deba table whether the petition states a valid claim of the denial of a c onstitutional right and th at jurists of reason would find it debatable whether the distri ct court was correct in its procedural ruling,” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Baker argues that the distri ct court erred in treating his motion to amend as a second or successive § 2255 motion for two reasons. Fi rst, he argues that the Supreme Court’s decision in Johnson constituted a new factual predicate for the presentation of what he contends was a pr eviously unripe claim. He likens the Supreme Court’s “vacatur” of the ACCA’s re sidual clause to the vacatur of a prior conviction and argues that , under the rationale of In re Weathersby , 717 F.3d 1108, 1110-11 (10th Cir. 2013) (per curiam), a § 2255 motion filed after a vacatur is not second or successive. Baker’s argument is devoid of any merit. Striking down a statute is not akin to vacating a prior convi ction. One alters th e governing law, the other the operative facts. Baker could have challenged the application of the ACCA to his prior convictions when he filed hi s first § 2255 motion; th e ripeness of that claim did not depend upon Johnson

. Second, Baker argues that his proposed amendment should not be treated as a second or successive claim be cause it relates back to his first § 2255 motion under- 4 - Rule 15(c). We have previously held that a post-judgment Rule 15 motion seeking to amend a § 2255 motion is subjec t to the restrictions on sec ond or successive filings. See United States v. Nelson , 465 F.3d 1145, 1148 (10th Cir. 2006). Accordingly, absent prior circuit authorization, the district court properl y concluded it had no jurisdiction to rule on the moti on to amend and dismissed it. See In re Cline , 531 F.3d at 1252. The district court also correctly acknowledged that Baker’s motion for reconsideration was itself an unauthorized second or su ccessive § 2255 motion. The motion did not raise a defect in the inte grity of the § 2255 pr oceedings; it sought instead to raise a new claim for relief. “It is the relief sought , not [the] pleading’s title, that determines whether th e pleading is a § 2255 motion.” Nelson , 465 F.3d at 1149. Because it was an unauthorized second or successive motion the district court had no jurisdiction to entertain it. We conclude that no juri st of reason could find it debatable whether Baker’s motion to amend and his motion to rec onsider were unauthorized second or successive § 2255 motions over which the di strict court had no jurisdiction. We therefore deny Baker’s request for a COA. We note, however, that the district court denied, rather than dismissed, Baker’s mo tion to reconsider. We therefore remand with instructions to the district court to di smiss the motion to rec onsider for lack of- 5 - jurisdiction. We grant Baker’s motion to proceed on appeal wi thout the prepayment of costs or fees.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk