UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

SEAN MICHAEL SCOTT, 

 Defendant - Appellant. 

No. 14-1493 

(D.C. No. 1:11-CR-00068-JLK-1) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before GORSUCH, McKAY, and BACHARACH, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 

Defendant Sean Scott pled guilty to two child pornography possession counts 

in the U.S. District Court for the District of Colorado and was sentenced to 120 

months of imprisonment in February 2012. He did not appeal. 

 *

 This order and judgment is not binding precedent, except under the doctrines 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

July 15, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

In January 2013, Defendant filed a motion to vacate his sentence under 28 

U.S.C. § 2255. The district court denied the motion, and Defendant again did not 

appeal. 

In August 2014, Defendant filed a document entitled “Motion Factually 

Challenging the Plaintiff’s Standing and the Subject Matter Jurisdiction of the Court 

Under Article III, Section 2 of the Constitution for the United States of America[,] 

Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(h)(3).” (R. at 291 (capitalization 

standardized).) The district court denied this motion, finding that it sought no 

cognizable form of relief. Defendant now seeks to appeal the denial of his motion. 

In his motion, Defendant contends his conviction must be vacated for lack of 

Article III standing. When a prisoner files a second post-judgment motion after 

judgment has already been entered on an initial § 2255 motion, the motion “is treated 

like a second-or-successive § 2255 motion—and is therefore subject to the 

authorization requirements of § 2255(h)—if it asserts or reasserts claims of error in 

the prisoner’s conviction.” United States v. Baker, 718 F.3d 1204, 1206 (10th Cir. 

2013). Defendant’s instant motion falls under this rule—it is a second post-judgment 

motion which asserts claims of error in his conviction and seeks relief which may 

only be granted pursuant to § 2255. His motion must therefore be treated as a 

successive § 2255 motion, regardless of how it was labelled. 

“[A] second or successive § 2255 motion cannot be filed in district court 

without approval by a panel of this court. As a result, if the prisoner’s pleading must 

be treated as a second or successive § 2255 motion, the district court does not even 
3 

have jurisdiction to deny the relief sought in the pleading.” United States v. Nelson, 

465 F.3d 1145, 1148 (10th Cir. 2006). Thus, the district court lacked jurisdiction to 

rule on Defendant’s second motion for relief from his conviction. 

As we did in Nelson, we will treat Defendant’s notice of appeal and appellate 

brief as an implied application to this court for leave to file a successive § 2255 

motion. See id. at 1149. We may grant such authorization only if the successive § 

2255 motion demonstrates either (1) newly discovered evidence that, if proven, 

would be sufficient to establish by clear and convincing evidence that no reasonable 

factfinder would have found the movant guilty of the offense, or (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). 

Defendant’s motion satisfies neither of these conditions, and we therefore 

DENY his implied request for leave to file a successive § 2255 motion. Because the 

district court lacked jurisdiction to rule on his unauthorized successive § 2255 

motion, we VACATE the district court’s judgment. Defendant’s motion to proceed 

in forma pauperis on appeal is GRANTED. The government’s motion to dismiss is 

DENIED. 

Entered for the Court 

Monroe G. McKay 

Circuit Judge