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-C V-00048-NDF & 2:07-CR-00196-CAB-5) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before GORSUCH , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ Jason Claycomb, a federal prisoner pro ceeding pro se, seeks a certificate of appealability (COA) to challenge the di strict court’s deci sion construing his Fed. R. Civ. P. 59(e) mo tion as an unauthorized seco nd 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. Clay comb of the following drug trafficking and firearm offenses: (1) conspiracy to possess with intent to dist ribute, 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* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### September 12, 2016 Elisabeth A. Shumaker Clerk of Court2 in violation of 18 U.S.C. § 924(c)(1)(B)( ii); and (3) unlawful possession of an unregistered firearm, in vi olation of 26 U.S.C. §§ 5841 , 5845(a), 5861(d), and 5871. He was sentenced to consecu tive thirty-year term s for the first two offenses and a concurrent ten-year term for the third offense. We affirmed Mr. Claycomb’s convic tions and sentence on direct appeal; however, the district court later vacated the ten-year concurrent sentence on ineffective-assistance-of-counsel grounds wh en it granted, in part, his initial § 2255 motion. Since that time, he has filed an unauthorized second or su ccessive § 2255 motion, which the district court dismissed for lack of jurisdiction. He also has filed two Fed. R. Civ. P. 60(b) motions, which th e district court dism issed as unauthorized second or successive § 2255 motions. Mr. Claycomb’s latest at tempt 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 la w in support of a motion to vacate under 28 U.S.C. § 2255(f)(4) (which he did not file separately). In hi s Rule 59(e) motion, he asked the district court to reconsider it s denial of his last § 2255 motion, at least with respect to the drug quan tities underlying his conviction. He repeated arguments from his prior § 2255 motion, asserting onc e again that newly discovered evidence shows the government did not establish al l 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 Investig ation 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 succe ssive § 2255 motion, notwithstanding its title. A prisoner ma y 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 addr ess 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 reassert s] a federal basis fo r relief from the petitioner’s underlying convicti on’ is actually a second or successive . . . § 2255 motion and requires authorizati on by the circuit court in orde r 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 fa lls into this categor y is a motion seeking leave to present “newly disc overed evidence” to advance th e 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 federa l 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, 10684 (10th Cir.), cert. denied , 136 S. Ct. 604 (2015), because the evidence in question existed at the time he f iled 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 th at “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, 484 (2000). Even reviewi ng Mr. Claycomb’s ap plication with the liberality due pro se applicants, see Garza v. Davis , 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), reasonable juri sts could not debate that th e district court was correct in its procedural ruling to treat Mr. Claycomb’s Rule 59( e) motion as an unauthorized second or successive § 2255 mo tion and to dismiss it for lack of jurisdiction. Accordingly, we deny a COA and dismiss this matter. Mr. Claycomb’s request to proceed on appe al 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 fili ng and docketing fees, only prepayment of those fees. Since we have reached the merits of this matter, prepayme nt of fees is no longer an issue. Though we have disposed of this matter on the mer its, Mr. Claycomb remain s obligated to pay all filing and docketing fees, a total of $505. He is directed to pay th e fees in full to the Clerk of the District Court fo r the District of Wyoming.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk