UNITED STATES COURT 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 certificate of appealability 

(COA) to challenge the district court’s dismissal 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 Career Criminal Act (ACCA) based on three 

prior felony burglary convictions. Following an unsuccessful direct appeal, Baker 

 

* This order is not binding precedent except under the doctrines of law of the 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

April 7, 2016

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

filed his first § 2255 motion in May 2009. The district court denied relief and this 

court denied a COA, United States v. Baker, 371 F. App’x 987, 988 (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 October 2015 seeking to amend his § 2255 

motion based on the Supreme Court’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. Baker sought to add a claim that his sentence was 

improperly enhanced under the ACCA because none of his prior convictions would 

qualify as a violent felony in the absence of the residual clause. He argued that his 

amendment could relate back to his original § 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 denied. And so we come to the current 

proceeding, in which Baker challenges 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 jurisdiction rests on procedural grounds, Baker 

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). 

Baker argues that the district court erred in treating his motion to amend as a 

second or successive § 2255 motion for two reasons. First, he argues that the 

Supreme Court’s decision in Johnson constituted a new factual predicate for the 

presentation of what he contends was a previously unripe claim. He likens the 

Supreme Court’s “vacatur” of the ACCA’s residual 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 conviction. One alters the governing law, the 

other the operative facts. Baker could have challenged the application of the ACCA 

to his prior convictions when he filed his first § 2255 motion; the 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 because 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 subject to the restrictions on second or successive filings. 

See United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006). Accordingly, 

absent prior circuit authorization, the district court properly concluded it had no 

jurisdiction to rule on the motion 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 successive § 2255 motion. The 

motion did not raise a defect in the integrity of the § 2255 proceedings; it sought 

instead to raise a new claim for relief. “It is the relief sought, not [the] pleading’s 

title, that determines whether the 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 jurist of reason could find it debatable whether Baker’s 

motion to amend and his motion to reconsider were unauthorized second or 

successive § 2255 motions over which the district 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 motion to reconsider. We therefore remand 

with instructions to the district court to dismiss the motion to reconsider for lack of 
- 5 - 

jurisdiction. We grant Baker’s motion to proceed on appeal without the prepayment 

of costs or fees. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk