UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

ERIC WILLIAM BLY, 

 Defendant-Appellant. 

No. 13-6241 

(D.C. No. 5:96-CR-00108-C-2) 

(W.D. Okla.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. 

 

 Eric William Bly, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (COA) to appeal the district court’s dismissal of his “Review for Lack 

of Subject Matter Jurisdiction,” which the district court construed as a motion under 

28 U.S.C. § 2255. We deny a COA, but we vacate the district court’s judgment and 

remand with instructions to dismiss for lack of jurisdiction. 

 Mr. Bly’s filing cited new legal authority to reassert an argument he raised 

during his first § 2255 proceeding—that the district court lacked jurisdiction to 

consider a certain motion for reconsideration and to order that his nine twenty-year 

 

* This order is not binding precedent except under the doctrines of law of the 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

February 7, 2014

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

sentences would run consecutively rather than concurrently. See United States v. Bly,

328 F.3d 1262, 1264 (10th Cir. 2003). The district court concluded that the filing 

was a § 2255 motion and dismissed it as barred by the limitations period in § 2255(f). 

 To appeal the decision, Mr. Bly must secure a COA. To do so, he must show 

“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). 

 Reasonable jurists could debate whether the district court was correct in its 

procedural ruling. Because the filing attacked the validity of Mr. Bly’s sentence and 

reargued claims made previously under § 2255, the district court was correct in 

construing it as a § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 

(2005); United States v. Nelson, 465 F.3d 1145, 1148-49 (10th Cir. 2006). But 

because Mr. Bly already has pursued relief under § 2255, the filing was a second or 

successive § 2255 motion. And Mr. Bly had not obtained this court’s authorization 

to file it, as required by 28 U.S.C. § 2255(h). Accordingly, the district court did not 

have jurisdiction to decide any issues in the case; its alternatives were to dismiss the 

filing for lack of jurisdiction or to transfer it to this court for authorization. See In re 

Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008); Nelson, 465 F.3d at 1148. 

 Reasonable jurists could not debate, however, whether Mr. Bly’s filing states a 

valid claim of the denial of a constitutional right. Mr. Bly claims that the district 
- 3 - 

court lacked jurisdiction to consider the government’s motion to reconsider and then 

order his sentences to run consecutively. As discussed, he is subject to the 

restrictions of § 2255(h), which affords relief only in limited circumstances, and his 

filing does not identify a new Supreme Court decision or new evidence that would 

allow his claim to proceed under § 2255(h). Further, this court already has explained 

why the district court had jurisdiction to consider the government’s motion to 

reconsider. See Bly, 328 F.3d at 1264-65. Finally, and perhaps most importantly, the 

sentence that Mr. Bly is serving did not arise from the government’s motion to 

reconsider. Although the district court granted the motion to reconsider and revised 

Mr. Bly’s sentence, see id. at 1264, on appeal we remanded the case to the district 

court to vacate that sentence and to conduct further proceedings because the revised 

sentence had been imposed in Mr. Bly’s absence, see id. at 1267. On remand, the 

district court resentenced Mr. Bly. See United States v. Bly, 142 F. App’x 339, 342 

(10th Cir. 2005). Mr. Bly is in custody on that later sentence, not on the earlier 

sentence that arose from the government’s motion to remand. 

 Mr. Bly argues that a motion asserting a lack of subject-matter jurisdiction 

cannot be restricted or procedurally defaulted. However, “[t]he subject-matter 

jurisdiction of lower federal courts is within the plenary control of Congress,” Alva v. 

Teen Help, 469 F.3d 946, 950 (10th Cir. 2006), and it is Congress who has required 

federal prisoners to obtain authorization for second or successive § 2255 motions 

before pursuing them in district court, see 28 U.S.C. § 2255(h). If Congress had 
- 4 - 

wished to exclude from § 2255(h) challenges to the district court’s jurisdiction, it 

could have done so. See also Cline, 531 F.3d at 1253 (considering jurisdictional 

claims as successive claims). 

 Mr. Bly also argues that the district court failed to comply with Castro v. 

United States, 540 U.S. 375, 383 (2003), which requires the court to notify a prisoner 

before recharacterizing a filing as a § 2255 motion. That restriction applies only to 

filings that would become a prisoner’s first § 2255 motion, however; the court is not 

required to give notice where a filing is a second or successive § 2255 motion. See 

Nelson, 465 F.3d at 1149 (“If the prisoner has filed once, any future motion will be 

subject to the same constraints whether it is a second § 2255 motion or a third.”). 

 Mr. Bly’s motion for leave to proceed without prepayment of fees and costs is 

granted. Because Mr. Bly cannot satisfy both parts of the Slack test, the application 

for COA is denied. But “[w]hen the lower federal court lacks jurisdiction, we have 

jurisdiction on appeal, not of the merits but merely for the purpose of correcting the 

error of the lower court in entertaining the suit.” Bender v. Williamsport Area Sch. 

Dist., 475 U.S. 534, 541 (1986) (brackets omitted) (internal quotation marks 

omitted). Accordingly, the district court’s judgment is vacated and the case is 

remanded to the district court with instructions to dismiss for lack of jurisdiction. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk