United States v. Sears

Opinion

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

FOR THE TENTH CIRCUIT December 4, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-3129 (D.C. No. 6:04-CR-10174-JTM-1) BRUCE SEARS, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, KELLY, and CARSON, Circuit Judges. _________________________________

Bruce Sears, a federal prisoner, filed a motion in the district court, purportedly

seeking a reduced sentence under 18 U.S.C. § 3582(c)(1)(A)(i). The district court

construed the motion as an unauthorized second or successive motion under 28 U.S.C.

§ 2255 and dismissed it for lack of jurisdiction. Proceeding pro se, Sears seeks a

certificate of appealability (COA) under 28 U.S.C. § 2253(c) in order to appeal the

district court’s ruling.1 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 We liberally construe his pro se application for a COA, see Hall v. Scott, 292 F.3d 1264, 1266 (10th Cir. 2002), but we do not assume the role of advocate, see Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). BACKGROUND

In 2004, Sears was convicted on four counts relating to an armed robbery in

Kansas. After determining that his prior robbery convictions in Kansas qualified as

serious violent felonies, the district court sentenced Sears to a mandatory term of life in

prison under the Three Strikes Statute, 18 U.S.C. § 3559(c)(1). We affirmed on direct

appeal. United States v. Sears, 191 F. App’x 800, 802 (10th Cir. 2006).

In 2008, Sears filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or

correct his sentence. The district court denied relief, and we denied a COA. United

States v. Sears, 294 F. App’x 383, 384 (10th Cir. 2008). Ten years later, Sears filed a

motion for a writ of audita querela, contending that, under United States v. Nicholas,

686 F. App’x 570 (10th Cir. 2017), his prior robbery convictions in Kansas no longer

qualified as serious violent felonies under the Three Strikes Statute and that his life

sentence should be vacated. The district court concluded the motion was, in form and

substance, a second or successive § 2255 motion, which Sears had not obtained

authorization to file under § 2255(h). The district court transferred the motion to this

court under 28 U.S.C. § 1631. But rather than seeking authorization, Sears moved to

remand, arguing the district court erred in construing his motion as a second or

successive § 2255 motion. We denied the motion to remand and terminated the matter.

In June 2020, Sears filed a motion to reduce his sentence under 18 U.S.C.

§ 3582(c)(1)(A)(i), raising the same arguments he made in his motion for a writ of audita

querela. The district court construed the filing as another unauthorized second or

successive § 2255 motion. This time, the district court declined to transfer the matter to

2 this court for Sears to obtain authorization because Sears “has repeatedly declined to seek

leave to file such a motion.” R. Vol. I at 139. The district court also declined to issue a

COA, observing the motion was another “attempt to evade the requirements for obtaining

leave to file a successive § 2255 motion.” Id. Sears gave timely notice of appeal.2

DISCUSSION

Sears must obtain a COA before he can appeal the dismissal of an unauthorized

second or successive § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B); United States v.

Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (applying COA requirement to the

dismissal of an unauthorized second or successive § 2255 motion). To obtain a COA,

Sears must make “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Because the district court’s ruling rested on procedural grounds,

Sears 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) (emphasis added). Sears has not met this burden.

The district court construed Sears’s motion for a reduced sentence under

§ 3582(c)(1)(A)(i) as a § 2255 motion because it was attacking the validity of his

sentence based upon post-sentencing case law, specifically, our unpublished decision in

2 After filing his notice of appeal, Sears moved for resentencing under 18 U.S.C. § 3559(c)(7), raising the same arguments regarding his prior robbery convictions and seeking the same sentencing relief. The district court denied the motion, noting Sears again was attempting to evade the bar against unauthorized second or successive § 2255 motions. Sears did not appeal that ruling, and therefore, it is not before this court. 3 Nicholas, 686 F. App’x 570. See R. Vol. 1 at 137-38 (noting Sears claimed “Congress

never intended for offenses like the one at issue here to serve as a predicate for sentence

enhancement” and describing Sears’s “argument [as] attack[ing] the fundamental validity

of his sentence” (internal quotation marks omitted)). As we have explained, “[a] § 2255

motion is one claiming the right to be released upon the ground that the sentence was

imposed in violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral attack.” United States

v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) (internal quotation marks omitted). Such

a motion “is generally the exclusive remedy for a federal prisoner seeking to attack the

legality of detention.” United States v. Bong, 913 F.3d 1252, 1260 (10th Cir. 2019)

(internal quotation marks omitted) (emphasis added).

Thus, regardless of how a movant characterizes a post-judgment motion, it must

be treated as a § 2255 motion if it “asserts or reasserts a federal basis for relief” from the

movant’s conviction or sentence. In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009)

(per curiam) (internal quotation marks omitted). “It is the relief sought, not [a] pleading’s

title, that determines whether the pleading is a § 2255 motion.” Nelson, 465 F.3d at

1149. And “[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.” Id. at 1148. “[T]o allow a petition to avoid the bar against successive § 2255

petitions by simply styling a petition under a different name would severely erode the

procedural restraints imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.” Id. (internal

4 quotation marks omitted). In particular, “Congress was surely aware that defendants

might wish to raise subsequent claims based upon changes in the applicable law, and

narrowly circumscribed the allowable claims through § 2255(h).” United States v.

Wetzel-Sanders, 805 F.3d 1266, 1268 (10th Cir. 2015).

Sears’s claim for a sentence reduction based on Nicholas falls squarely within the

scope of § 2255, not § 3582(c)(1)(A)(i).3 Reasonable jurists would not dispute the

district court’s decision to construe Sears’s motion as a § 2255 motion. Moreover, as the

court observed, Sears had previously filed a § 2255 motion challenging his enhanced

sentence, and the district court dismissed that motion. Sears therefore needed to obtain

authorization from this court before he could file a second or successive § 2255 motion.

28 U.S.C. § 2255(h). Although Sears argues the merits of his claims and insists he is

serving an excessive sentence based on Nicholas, he does not dispute the district court’s

findings that he previously filed a § 2255 motion and that he did not obtain authorization

to file another one. Reasonable jurists, therefore, would not dispute the court’s decision

to dismiss the motion for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251

3 Under 18 U.S.C. § 3582(c)(1)(A)(i), a district court may reduce a sentence if, after considering any applicable sentencing factors in § 3553, it finds that “extraordinary and compelling reasons warrant such a reduction” and that the “reduction is consistent with applicable policy statements issued by the Sentencing Commission.” See also 28 U.S.C. § 994(t) (directing the Sentencing Commission to “describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples”). None of the reasons the Sentencing Commission has identified as justifying a sentence reduction under § 3582(c)(1)(A) includes legal error in a defendant’s sentence or post-sentencing developments in the case law. 5 (10th Cir. 2008) (per curiam) (noting the district court lacks jurisdiction to consider the

merits of an unauthorized second or successive § 2255 motion).

CONCLUSION

Because reasonable jurists could not debate the correctness of the district court’s

procedural ruling, we deny Sears’s application for a COA and dismiss this matter. We

deny his motion to proceed on appeal without prepayment of costs or fees. The filing

fees and costs are due and payable immediately.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk