*

This order and judgment is not binding precedent except under the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 12, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 09-2260

v. (D. New Mexico)

CHARLES ELLWOOD GWATHNEY,

Defendant - Appellant.

(D.C. Nos. CIV-07-00899-WJ-LAM

and 1:04-CR-01533-WJ-1)

ORDER DENYING

CERTIFICATE OF APPEALABILITY*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

Charles Gwathney, currently incarcerated in the federal correctional facility

in Morgantown, West Virginia, and proceeding pro se, seeks a certificate of

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appealability (“COA”) to enable him to appeal the denial for lack of jurisdiction

of his successive 28 U.S.C. § 2255 petition. We affirm.

BACKGROUND

Mr. Gwathney is serving a 137-month sentence following his conviction, by

a jury, of possession of more than 100 kilos of marijuana. Our court affirmed his

conviction on direct appeal. United States v. Gwathney, 465 F.3d 1133 (10th Cir.

2006), cert. denied, 550 U.S. 927 (2007). Mr. Gwathney then filed a motion in

the district court under 28 U.S.C. § 2255, which was denied. On appeal, our court

denied Mr. Gwathney a certificate of appealability (“COA”), a prerequisite to

pursuing his appeal. United States v. Gwathney, 318 Fed. Appx. 616 (10th Cir.

Oct. 31, 2008) (unpublished), cert. denied, 129 S. Ct. 1636 (2009). Mr.

Gwathney then filed a Fed. R. Civ. P. 60(b) motion, which the district court

construed as an unauthorized second or successive § 2255 motion, and it

transferred the motion to this court. This court denied Mr. Gwathney’s motion

for remand, and dismissed the matter. In re: Gwathney, No. 08-2145 (10th Cir.

July 30, 2008) (unpublished order). Next, Mr. Gwathney filed an original petition

before us, seeking permission to file a successive § 2255 motion, which we

denied. In re: Gwathney, No. 09-2161 (10th Cir. July 2, 2009) (unpublished

order).

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Mr. Gwathney then returned to district court, filing a motion labeled

“Motion Pursuant to the Federal Rules of Civil Procedure Rule 5.1 Challenging

the Constitutionality to a Statute-Notice, Certification, and Intervention Used to

Justify Proven Perjury of Officer Smid While Under Oath as to Probable Cause.” 

R. Vol. 1 at 343. The district court construed it as a second or successive § 2255

motion. “A district court does not have jurisdiction to address the merits of a

second or successive § 2255 . . . claim until [the Tenth Circuit] has granted the

required authorization.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). Thus,

“[w]hen a second or successive § 2254 or § 2255 claim is filed in the district

court without the required authorization from this court, the district court may

transfer the matter to this court if it determines it is in the interest of justice to do

so under § 1631, or it may dismiss the motion or petition for lack of jurisdiction.”

Id. at 1252. Among the factors relevant in determining whether a transfer is in

the interest of justice include “whether the claims alleged are likely to have

merit.” Id. at 1251. Additionally, 28 U.S.C. § 2255(h) specifically provides that

a second or successive motion will be allowed to proceed only if a panel of the

appropriate court of appeals certifies that the motion contains:

(1) newly discovered evidence that, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found

the movant guilty of the offense; or 

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(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).

The district court found that Mr. Gwathney’s motion did not rely on newly

discovered evidence or a new rule of constitutional law that was previously

unavailable. Indeed, Mr. Gwathney challenges the constitutionality of the New

Mexico statute that authorized the search of his truck, that led to the seizure of

the 100 kilograms of marijuana. There is nothing new, either in fact or law, in

that challenge. The district court decided it would not be in the interest of justice

to transfer Mr. Gwathney’s motion to our court because the motion “does not

satisfy the standards for authorization of a successive § 2255 motion.” Mem. Op.

& Order at 3, R. Vol. 1 at 365. It accordingly denied Mr. Gwathney’s motion for

lack of jurisdiction.

The district court did not act on the issue of a COA. Pursuant to the

General Order of October 1, 1996, and former Tenth Cir. R. 22.1(c), a COA is

deemed denied. Mr. Gwathney filed an application for a COA with this court. A

COA is a jurisdictional prerequisite, requiring a petitioner to make “a substantial

showing of the denial of a constitutional right” before proceeding on appeal. 28

U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Where, as

here, the district court denies a petition on procedural grounds, we may not issue

a COA unless “the prisoner shows, at least, that jurists of reason would find it

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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). Therefore, Mr. Gwathney must show that reasonable jurists could debate

whether the district court was correct in dismissing the case for lack of

jurisdiction and in deciding not to transfer the case to our court under 28 U.S.C.

§ 1631. He cannot make this showing, for no reasonable jurist could debate the

correctness of the district court’s conclusion that Mr. Gwathney’s motion does not

satisfy the standards for authorization of a successive § 2255 motion and it would

therefore not be in the interests of justice to transfer his motion to our court.

In sum, the district court correctly determined that it was not in the interest

of justice to transfer Mr. Gwathney’s unauthorized petition to our court, and the

court consequently properly dismissed the petition for lack of jurisdiction. 

Mr. Gwathney cannot establish that reasonable jurists would question the

propriety of the district court’s holding. We therefore deny Mr. Gwathney a COA

and dismiss this matter.

CONCLUSION

For the foregoing reasons, the application for a COA is DENIED and the

matter is DISMISSED. As the above order indicates, Mr. Gwathney has filed a

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number of unsuccessful motions under § 2255. We caution him that further such

filings may subject him to sanctions, including filing restrictions.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge 

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