UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ERIC LAMONT JOHNSON, 

 Defendant - Appellant. 

No. 14-2169 

(D.C. Nos. 1:03-CR-00477-MV-1 & 

1:11-CV-00037-MV-LAM) 

(D. N.M.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges. 

 

 Eric Lamont Johnson seeks a certificate of appealability (COA) to appeal from 

the district court’s dismissal of his motion under 28 U.S.C. § 2255(f)(4) as an 

unauthorized second or successive 28 U.S.C. § 2255 motion. See 28 U.S.C. 

§ 2255(h). We deny a COA and dismiss this matter. 

 Mr. Johnson pleaded guilty to possessing a firearm during or in relation to a 

drug trafficking crime and was sentenced to 180 months’ imprisonment. See United 

States v. Johnson, 376 F. App’x 858, 859 (10th Cir. 2010) (direct appeal). After 

unsuccessfully pursuing relief under § 2255, see United States v. Johnson, 

 

* This order is not binding precedent except under the doctrines of law of the 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 26, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-2169 Document: 01019390974 Date Filed: 02/26/2015 Page: 1 
- 2 -

529 F. App’x 876, 876, 879 (10th Cir. 2013) (denying a COA), cert. denied, 

134 S. Ct. 1041 (2014), he filed a motion under Fed. R. Civ. P. 60(b) claiming that he 

was entitled to relief under Bailey v. United States, 516 U.S. 137 (1995). The district 

court dismissed the motion as an unauthorized second or successive § 2255 motion. 

Mr. Johnson then sought authorization from this court to pursue relief under Bailey. 

We denied authorization, noting that Bailey had been decided years before 

Mr. Johnson’s conviction. See In re Johnson, No. 14-2087, at 2-3 (10th Cir. June 6, 

2014) (unpublished order). Mr. Johnson’s most recent filing is his “Subsequent 

Motion Invoking the Power of U.S.C. 2255(f)(4),” which again relies upon Bailey, 

and which the district court dismissed as an unauthorized second or successive 

§ 2255 motion. 

 Mr. Johnson must obtain a COA to appeal. See United States v. Harper, 

545 F.3d 1230, 1233 (10th Cir. 2008). For a COA, 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). But no reasonable jurist would find the district court’s procedural 

disposition debatable. 

 “A § 2255 motion is one claiming the right to be released upon the ground that 

the sentence was imposed in violation of the Constitution or laws of the United 

States, or that the court was without jurisdiction to impose such sentence, . . . or [the 

Appellate Case: 14-2169 Document: 01019390974 Date Filed: 02/26/2015 Page: 2 
- 3 -

sentence] is otherwise subject to collateral attack.” United States v. Nelson, 465 F.3d 

1145, 1148 (10th Cir. 2006) (internal quotation marks omitted). “It is the relief 

sought, not [the] pleading’s title, that determines whether the pleading is a § 2255 

motion.” Id. at 1149. It is apparent that Mr. Johnson seeks relief in the nature of a 

§ 2255 motion. He points out that he is relying on § 2255(f)(4). But § 2255(f) does 

not allow him to evade § 2255(h)’s restrictions. Rather, he must meet both

subsections’ requirements. See Prost v. Anderson, 636 F.3d 578, 591 (10th Cir. 

2011) (noting potential effects of the interaction between §§ 2255(f)(3) and 

2255(h)(2)). 

 Mr. Johnson’s district court filing has not been authorized; to the contrary, as 

noted above, this court has denied him authorization to bring claims based on Bailey. 

Accordingly, no reasonable jurist could debate the district court’s decision to dismiss 

the “Subsequent Motion” for lack of jurisdiction. Mr. Johnson complains that the 

district court did not address his arguments regarding a miscarriage of justice, but it 

was not within the court’s power to do so. “[I]f the prisoner’s pleading must be 

treated as a second or successive § 2255 motion, the district court does not even have 

jurisdiction to deny the relief sought in the pleading.” Nelson, 465 F.3d at 1148. 

 We deny a COA and dismiss this matter. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk 

Appellate Case: 14-2169 Document: 01019390974 Date Filed: 02/26/2015 Page: 3