UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appell ee ,
v. JASON CLAYCOMB , Defendant

- Appellant

. No. 14

- 8031 (D.C. No s . 2:14

- CV

- 00048

- ND F and 2:07

- CR

- 00196

- CAB

- 5 ) ( D. Wyo. )

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ , McKAY , and MATHESON , Circuit Judges.

Defendant Jason Claycomb, a federal prisoner proceeding pro se, filed a motion for relief under 28 U.S.C. § 2255 that was granted in part and denied in part. He then filed another § 2255 motion, relying on Alleyne v. United States , 133 S. Ct. 2151 (2013) , to claim that facts necessary to impose his mandatory minimum sentence had not been submitted to the jury. He argued that his § 2255 motion was timely under § 2255(f)(3) and that it was not a second

- or - successive motion bec ause the claim was not ripe until Alleyne was decided. The United States District Court for the District of Wyoming held that it lacked jurisdiction because the motion was second or successive and denied the motion. Defendant now seeks a certificate of appealability from this court to appeal the FILED United States Court of Appeals Tenth Circuit 

### August 26, 2014
Elisabeth A. Shumaker Clerk of Court2 denial. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 motion). We deny the request and dismiss the appeal, with directions to the district court to dismiss, rather than deny, the motion because it was a second

- or - successive motion over which the court lacked jurisdiction. Further, we construe Defendant’s petition for a COA as a request for authorization to bring a second

- or - successive § 225 5 motion and deny that request. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a prisoner cannot file a “second or successive” motion under § 2255 unless it is “certified

. . . by a panel of the appropriate court of appeals to co ntain

— (1) newly discovered evidence .

. . or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). Although Defendant’s § 2255 motion was certainl y a second motion, he claims that it was not second or successive because it did not become ripe until Alleyne was decided. There is support for the proposition that a previously unripe claim is not second or successive. See Panetti v. Quarterman , 551 U. S. 930, 945

– 47 (2007); In re Weathersby , 717 F.3d 1108, 1111 (10th Cir. 2013) (a claim “was not ripe when first petition was filed, because it was based on events that had not yet occurred”). But what makes a claim un ripe is that the factual predicate has not matured , not that the law was unsettled. Here , all the facts had matured by the time sentence was imposed. Defendant was not awaiting further factual development before he could bring his claim , and3 nothing prevented him from filing his § 2255 motio n earlier and making the same arguments he now makes (this is what the defendant in Alleyne did). The Fifth Circuit has addressed a similar situation: [The defendant asks] us to hold that a petition is non

- successive if it rests on a rule of constitutional law decided after the petitioner’s first habeas proceeding because such a claim would not have been previously available. But § 2244(b) prohibits suc h a result. Newly available claims based on new rules of constitutional law (made retroactive by the Supreme Court) are successive under § 2244(b)(2)(A): Indeed, this is the reason why authorization is needed to obtain review of a successive petition. Leal Garcia v. Quarterman , 573 F.3d 214, 221 (5th Cir. 2009). We agree with the Fifth Circuit’s interpretation of § 2244(b) and apply that analysis to the analogous language in § 2255(h). See United States v. Rogers , No. 13

- 6262, 2014 WL 1408895 , *2 (10t h Cir. Apr. 14, 2014) ( the defendant “points to no fac tual occurrence that caused his [claim under a recent Supreme Court decision] to ripen after his first § 2255 motion was decided”). Defendant’s reliance on Reed v. Ross , 468 U.S. 1, 14

– 15 (1984) , is mi splaced. That opinion predated AEDPA , it did not address whether a claim had been ripe , and the § 2254 application in that case was apparently the petitioner’s first , see id. at 7

– 8. To avoid further proceedings on this matter, however, we will treat Defendant’s pleadings in this case as an implied application for leave to file a second § 2255 motion.
See United States v. Nelson , 465 F.3d 1145, 1149 (10th Cir. 2006). We deny leave
be cause Alleyne does not apply retroactively. See In re Payne , 733 F.3d 1027, 1029

– 30 (10th Cir. 2013)

.4 We DENY the request for a COA but REMAND with instructions to the district court to dismiss Defendant’s § 2255 motion for lack of jurisdiction. We also DENY authorization to file a second or successive § 2255 motion, and we DENY Defendant’s request to proceed in forma pauperis

. E NTERED FOR THE COURT

Harris L Hartz Circuit Judge