UNITED STATES CO URT 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 fede ral prisoner proceeding pro se , seeks a certificate of appealability (COA) to appeal the district court’s dismi ssal 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 dism iss 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* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

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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 cour t 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 s ecure a COA. To do so, he must show “that jurists of reason would find it debatabl e whether the petition states a valid claim of the denial of a constituti onal right and that jurists of reason would find it debatable whether the district court was corr ect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 48 4 (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 previ ously 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 fi ling was a second or successive § 2255 motion. A nd Mr. Bly had not obtained th is 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 th e case; its alternatives were to dismiss the filing for lack of jurisdicti on 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, how ever, whether Mr. Bl y’s filing states a valid claim of the denial of a constitutiona l 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 re lief only in limited circumstances, and his filing does not identify a new Supreme Cour t 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 se rving did not arise from the government’s motion to reconsider. Although the district court gr anted the motion to reconsider and revised Mr. Bly’s sentence, see id. at 1264, on appeal we remande d the case to the district court to vacate that sentence and to conduc t 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 governme nt’s motion to remand. Mr. Bly argues that a motion asserting a lack of subject-matter jurisdiction cannot be restricted or procedurally defa ulted. 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 C ongress who has required federal prisoners to obtain authorizati on for second or succes sive § 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 cour t’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 dist rict court failed to comply with Castro v. United States , 540 U.S. 375, 383 (2003), which requ ires the court to notify a prisoner before recharacterizing a fili ng 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 successi ve § 2255 motion. See Nelson , 465 F.3d at 1149 (“If the prisoner has filed once, a ny future motion will be subject to the same constrai nts whether it is a second § 2255 motion or a third.”). Mr. Bly’s motion for leave to proceed without prepayme nt of fees and costs is granted. Because Mr. Bly ca nnot satisfy both parts of the Slack test, the application for COA is denied. But “[w]hen the lower federal court lacks ju risdiction, we have jurisdiction on appeal, not of the merits but merely for th e 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) (bracket s omitted) (internal quotation marks omitted). Accordingly, the district c ourt’s judgment is vacated and the case is remanded to the district court with instructi ons to dismiss for lack of jurisdiction. Entered for the Court

ELISABETH A. SHUMAKER, Clerk