United States v. Ford

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 31, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-3181 (D.C. Nos. 2:19-CV-02452-KHV & WILLIE F. FORD, 2:10-CR-20129-KHV-7) (D. Kan.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before TYMKOVICH, Chief Judge, MORTIZ and CARSON, Circuit Judges. _________________________________

Willie F. Ford, a federal prisoner proceeding pro se, filed a “Motion to

Reconsider/Amend Judgment,” which the district court construed as an unauthorized

second or successive 28 U.S.C. § 2255 motion and dismissed for lack of jurisdiction.

Mr. Ford seeks a certificate of appealability (COA) to appeal the dismissal. For the

reasons that follow, we deny a COA and dismiss this matter.

Mr. Ford was convicted by a jury of (1) conspiracy to distribute and possess with

intent to distribute more than five kilograms of cocaine and more than 280 grams of

cocaine base (crack), (2) conspiracy to maintain a residence for the purpose of

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. distributing crack within 1000 feet of a public secondary school, (3) distribution of crack

within 1000 feet of a public secondary school, and (4) use of a communication device to

facilitate a drug trafficking offense. The district court sentenced him to 420 months in

prison. On direct appeal, we affirmed his convictions and sentence.

Mr. Ford filed his first § 2255 motion in 2014, asserting multiple claims of

ineffective assistance of counsel. The district court denied the motion, and we denied

Mr. Ford’s request for a COA. With authorization from this court, Mr. Ford filed a

second § 2255 motion in 2016, challenging the enhanced sentence he received under the

career offender provision of the U.S. Sentencing Guidelines. The district court dismissed

the motion because Mr. Ford’s claim was precluded by Beckles v. United States,

137 S. Ct. 886 (2017). He did not seek to appeal.

Mr. Ford has since filed multiple postjudgment motions challenging his

convictions and sentence, each of which the district court has construed as an

unauthorized second or successive § 2255 motion and dismissed for lack of jurisdiction.

The most recent dismissal—of Mr. Ford’s motion to reconsider or amend the judgment in

his criminal case—is the subject of this application for a COA.

To obtain a COA, Mr. Ford must show both “that jurists of reason would find it

debatable whether the [motion] 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) (emphasis added).

A prisoner may not file a second or successive § 2255 motion in the district court unless

he first obtains an order from the circuit court authorizing the district court to consider

2 the motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Without 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).

A postjudgment motion is treated as a second or successive § 2255 motion “if it in

substance or effect asserts or reasserts a federal basis for relief from the [prisoner’s]

underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006); see

also United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006) (“It is the relief

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

motion.”). In his motion to reconsider or amend the judgment, Mr. Ford claimed that the

district court violated his constitutional rights when it (1) sentenced him without specific

findings by the jury as to drug quantity and type and that the offense occurred within

1000 feet of a school, (2) sentenced him without making particularized findings regarding

his role in the conspiracy, (3) sentenced him above the statutory maximum penalty, and

(4) sentenced him as a career offender. Because the motion asserted “a federal basis for

relief from [his] underlying conviction and sentence,” Spitznas, 464 F.3d at 1215, and

was filed without authorization from this court, reasonable jurists could not debate the

correctness of the district court’s dismissal for lack of jurisdiction.

Mr. Ford’s application for a COA is denied, and this matter is dismissed.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk