UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff − Appellee, 

v. 

DHEADRY LOYD POWELL, 

 Defendant − Appellant. 

No. 14-3212 

(D.C. Nos. 2:14-CV-02290-CM & 

2:05-CR-20067-CM-1) 

(D. Kan.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before HARTZ, EBEL, and MORITZ, Circuit Judges. 

 

 Dheadry Loyd Powell, proceeding pro se, seeks a certificate of appealability 

(COA) to appeal from the district court’s dismissal of his filing entitled “Informal 

Appellate Brief ‘2255’ Concerning Alleyne/Apprendi Issues” as an unauthorized 

second or successive 28 U.S.C. § 2255 motion. As implied by the title, his filing 

sought relief from his sentence under § 2255 based on the Supreme Court’s recent 

decision in Alleyne v. United States, 133 S. Ct. 2151 (2013). We deny a COA and 

dismiss this matter. 

 

* This order is not binding precedent except under the doctrines of law of the 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

March 24, 2015

Elisabeth A. Shumaker 

Clerk of Court

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 Mr. Powell 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 could debate whether the district court correctly 

held that the filing was an unauthorized second or successive § 2255 motion. 

 Mr. Powell recognizes that this is his second § 2255 motion, but he asserts that 

it is not subject to the restrictions of 28 U.S.C. § 2255(h) because it is based on a 

change in the governing law, namely Alleyne. He contends that because he relies on 

a new right, he can proceed under § 2255(f)(3), which sets a one-year filing deadline 

starting on “the date on which the right asserted was initially recognized by the 

Supreme Court, if that right has been newly recognized by the Supreme Court and 

made retroactively applicable to cases on collateral review.” But § 2255(f)(3) does 

not allow him to evade § 2255(h)(2)’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)). 

 Allowing Mr. Powell to proceed solely under § 2255(f)(3) without regard to 

§ 2255(h), as he urges, would nullify § 2255(h)(2). Mr. Powell’s arguments 

regarding the earlier non-availability of Alleyne, grounded in abuse-of-the-writ 

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doctrine, fail for the same reason: there would be no point to § 2255(h)(2) if a 

prisoner could proceed under any new decision simply because it had not been issued 

at the time of a first § 2255 motion. See Prost, 636 F.3d at 586 (“If the rule were 

otherwise . . . the statute’s limitations would be effectively pointless[.]”); id. at 589 

(“The simple fact is that Congress decided that, unless subsection (h)’s requirements 

are met, finality concerns trump and the litigation must stop after a first collateral 

attack.”). We also reject Mr. Powell’s assertion that applying § 2255(h)(2) to him 

would implicate the Suspension Clause. See Felker v. Turpin, 518 U.S. 651, 654, 

663-64 (1996) (holding that restrictions on second or successive 28 U.S.C. § 2254 

applications do not violate Suspension Clause); Gilbert v. United States, 640 F.3d 

1293, 1317 (11th Cir. 2011) (en banc) (applying Felker to § 2255(h)). 

 Because Mr. Powell’s new filing again sought to challenge his sentence under 

§ 2255 and this court did not authorize the filing, the district court lacked jurisdiction 

to consider it. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). 

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

it for lack of jurisdiction. See id. at 1252. Further, given that Alleyne does not 

satisfy § 2255(h)(2), see In re Payne, 733 F.3d 1027, 1029-30 (10th Cir. 2013) 

(per curiam),1

 no reasonable jurist could debate the district court’s decision not to 

 

1

 Mr. Powell argues that Alleyne should apply retroactively, and that the lower 

federal courts can determine under § 2255(f)(3) whether it so applies. We do not 

consider these arguments because Mr. Powell is bound by § 2255(h)(2), which by its 

(continued) 

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transfer the motion to this court for authorization, see Cline, 531 F.3d at 1252. 

Mr. Powell complains that the district court did not address his extensive retroactivity 

analysis, but the district court’s lack of jurisdiction means that it could not consider 

his merits arguments. See United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 

2006) (“[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.”). 

 We deny Mr. Powell’s “Motion to Amend Petitioner’s 28 U.S.C. §2255” as 

moot. We grant his motion to proceed without prepayment of costs and fees, but we 

deny a COA and dismiss this matter. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk 

 

plain language requires that the Supreme Court, not the lower federal courts, make 

Alleyne retroactive to cases on collateral review. 

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