UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JASON CLAYCOMB, 

 Defendant - Appellant. 

No. 15-8136 

(D.C. Nos. 2:14-CV-00048-NDF & 

2:07-CR-00196-CAB-5) 

(D. Wyo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before GORSUCH, BACHARACH, and MORITZ, Circuit Judges. 

_________________________________ 

Jason Claycomb, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (COA) to challenge the district court’s decision construing his 

Fed. R. Civ. P. 59(e) motion as an unauthorized second or successive 28 U.S.C. 

§ 2255 motion and dismissing it for lack of jurisdiction. We deny a COA and 

dismiss this matter. 

A jury convicted Mr. Claycomb of the following drug trafficking and firearm 

offenses: (1) conspiracy to possess with intent to distribute, and to distribute, 

methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 

and 846; (2) possession of a machine gun in furtherance of a drug trafficking crime, 

 *

 This order is not binding precedent, except under the doctrines of law of the 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

September 12, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

in violation of 18 U.S.C. § 924(c)(1)(B)(ii); and (3) unlawful possession of an 

unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5845(a), 5861(d), and 5871. 

He was sentenced to consecutive thirty-year terms for the first two offenses and a 

concurrent ten-year term for the third offense. 

We affirmed Mr. Claycomb’s convictions and sentence on direct appeal; 

however, the district court later vacated the ten-year concurrent sentence on 

ineffective-assistance-of-counsel grounds when it granted, in part, his initial § 2255 

motion. Since that time, he has filed an unauthorized second or successive § 2255 

motion, which the district court dismissed for lack of jurisdiction. He also has filed 

two Fed. R. Civ. P. 60(b) motions, which the district court dismissed as unauthorized 

second or successive § 2255 motions. 

Mr. Claycomb’s latest attempt to circumvent the authorization requirement 

comes in the form of a motion under Fed. R. Civ. P. 52(a) and 59(e), filed on June 1, 

2015, with an attached memorandum of law in support of a motion to vacate under 

28 U.S.C. § 2255(f)(4) (which he did not file separately). In his Rule 59(e) motion, 

he asked the district court to reconsider its denial of his last § 2255 motion, at least 

with respect to the drug quantities underlying his conviction. He repeated arguments 

from his prior § 2255 motion, asserting once again that newly discovered evidence 

shows the government did not establish all of the elements of the drug offenses 

through a credible lab report. He cited, in particular, a 2007 laboratory report by the 

Division of Criminal Investigation and excerpts from his co-defendant’s plea hearing 

in 2008. 
3 

In an order dated December 3, 2015, the district court concluded that 

Mr. Claycomb’s Rule 59(e) motion itself is a second or successive § 2255 motion, 

notwithstanding its title. A prisoner may not file a second or successive § 2255 

motion unless he first obtains an order from the circuit court authorizing the district 

court to consider the motion. 28 U.S.C. § 2244(b)(3)(A). Absent such authorization, 

a district court lacks jurisdiction to address the merits of a second or successive 

§ 2255 motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). 

Consequently, the district court dismissed the motion for lack of jurisdiction. 

The district court explained that like a Rule 60(b) motion, a Rule 59(e) motion 

that “‘in substance or effect asserts [or reasserts] a federal basis for relief from the 

petitioner’s underlying conviction’ is actually a second or successive . . . § 2255 

motion and requires authorization by the circuit court in order to proceed in district 

court.” Claycomb v. United States, No. 2:14-cv-00048-NDF, Doc. 29 (Order 

Dismissing Petitioner’s Motion under Fed. R. Civ. P. 52(a)/59(e)) at 5 (D. Wyo. 

Dec. 3, 2015) (quoting United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006)). 

It further explained that one motion that falls into this category is a motion seeking 

leave to present “newly discovered evidence” to advance the merits of a claim that 

was denied previously. Id. at 5-6 (citing Spitznas v. Boone, 464 F.3d 1213, 1215 

(10th Cir. 2006)). It then dissected the Rule 59(e) motion and found that, in essence, 

Mr. Claycomb was reasserting a federal basis for relief from his underlying 

conviction. And it found Mr. Claycomb was not entitled to an exception to the bar 

on successive § 2255 motions under United States v. Williams, 790 F.3d 1059, 1068 
4 

(10th Cir.), cert. denied, 136 S. Ct. 604 (2015), because the evidence in question 

existed at the time he filed his initial § 2255 motion. 

Mr. Claycomb now seeks a COA under 28 U.S.C. § 2253(c) to challenge this 

decision. To obtain one, he must show 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). Even reviewing Mr. Claycomb’s application with the 

liberality due pro se applicants, see Garza v. Davis, 596 F.3d 1198, 1201 n.2 

(10th Cir. 2010), reasonable jurists could not debate that the district court was correct 

in its procedural ruling to treat Mr. Claycomb’s Rule 59(e) motion as an unauthorized 

second or successive § 2255 motion and to dismiss it for lack of jurisdiction. 

Accordingly, we deny a COA and dismiss this matter. 

Mr. Claycomb’s request to proceed on appeal without prepayment of costs or fees 

is denied as moot. The relevant statute, 28 U.S.C. § 1915(a)(1), does not permit litigants 

to avoid payment of filing and docketing fees, only prepayment of those fees. Since we 

have reached the merits of this matter, prepayment of fees is no longer an issue. Though 

we have disposed of this matter on the merits, Mr. Claycomb remains obligated to pay all 

filing and docketing fees, a total of $505. He is directed to pay the fees in full to the 

Clerk of the District Court for the District of Wyoming. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk