(D.C. Nos. 1:09-CR-00345-NDF-1 & 1:12-CV-00268-NDF) (D. Wyo.)
Before BRISCOE, Chief Judge, HARTZ and TYMKOVICH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
Johnny Hodge, a federal prisoner proceeding pro se, seeks to appeal the district court's dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence for lack of jurisdiction. We deny a certificate of appealability (COA) and dismiss this proceeding.
Hodge pleaded guilty to federal drug trafficking and firearms offenses and was sentenced to 240 months' imprisonment. The district court entered the criminal judgment in May 2010. Hodge did not file a direct appeal, but in October 2011, he filed a pro se § 2255 motion. The district court dismissed his motion as time-barred under 28 U.S.C. § 2255(f) because Hodge failed to file it within one year of the date that his judgment of conviction became final. Hodge filed another § 2255 motion on November 29, 2012, which the district court dismissed for lack of jurisdiction as an unauthorized second-or-successive § 2255 motion. Hodge seeks a COA to appeal the district court's dismissal order.
Hodge must obtain a COA to pursue an appeal. See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court's ruling rests on procedural grounds, he 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). Hodge satisfies one, but not both, parts of this test.
A. Would Jurists of Reason Find it Debatable Whether the District Court's Procedural Ruling was Correct?
Addressing the second part, we conclude that jurists of reason would find it debatable whether the district court's procedural ruling in this case was correct. The district court's conclusion was correct to the extent that Hodge attempted to bring a claim that his defense counsel provided ineffective assistance with respect to his sentencing. But the correctness of the court's ruling is debatable with respect to Hodge's claim that is based upon a recently obtained amended judgment related to state court convictions that Hodge contends were used to enhance his federal sentence.
We initially conclude that the district court was correct in holding that Hodge's original § 2255 motion filed in October 2011, which the district court dismissed as time-barred, was adjudicated on the merits. Therefore, it counts as his first § 2255 motion for purposes of determining whether a later motion is second or successive. See In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (per curiam) (holding that the dismissal of a first habeas petition as time-barred was a decision on the merits rendering later habeas petitions challenging the same conviction second or successive under 28 U.S.C. § 2244(b)).
Having already filed a first § 2255 motion, Hodge must obtain this court's authorization to file a second-or-successive motion. See 28 U.S.C. §§ 2255(h), 2244(b)(3). A prisoner's post-judgment motion is treated as 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 or sentence. United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). In contrast, if the motion "seeks to correct an error in the previously conducted [§ 2255] proceeding itself, " it is not characterized as a successive motion. Id. "[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.
The district court construed Hodge's motion as alleging a claim that his trial counsel was ineffective in failing to object to the presentence investigation report (PIR), and thereby allowing him to be sentenced as a career offender under United States Sentencing Guidelines (USSG) § 4B1.1. Hodge asserted in his § 2255 motion that his counsel never reviewed the PIR with him and never told him that he was being sentenced as a career offender. He claimed that he "made this known" to the district court at his sentencing. R. at 6.
The district court was correct in concluding that Hodge's ineffective-assistance claim was second or successive under Nelson because it asserted a claim of error in his sentence. See 465 F.3d at 1147. But the court construed his pro se § 2255 motion too narrowly. See United States v. Lee Vang Lor, 706 F.3d 1252, 1256 (10th Cir. 2013) (construing pro se § 2255 motion liberally). Liberally construed, Hodge's motion also sought to reopen his sentence based on a Stipulated Order Modifying Judgment and Sentence issued by a Wyoming state district court (Wyoming Stipulated Order). See R. at 12-15. Hodge asserted that, as a result of the Wyoming Stipulated Order, he no longer has two predicate state convictions, and he therefore is not a career offender under USSG § 4B1.1(a), which requires "two prior felony convictions of either a crime of violence or a controlled substance offense."
In Custis v. United States, 511 U.S. 485, 497 (1994), the Supreme Court stated that a defendant who has successfully attacked state sentences either in state court or in federal habeas review could "then apply for reopening of any federal sentence enhanced by the state sentences." Following Custis, we "recognized the availability of sentence review upon the invalidation of a predicate offense." United States v. Cox, 83 F.3d 336, 339 (10th Cir. 1996) (holding claim was cognizable under § 2255 after prior convictions used to calculate criminal history under Sentencing Guidelines were successfully attacked). The Supreme Court more recently reiterated "that a prisoner could proceed under § 2255 after successful review of the prior state conviction ...