UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 97-5070
v.	N.D. Oklahoma
GARY B. HOBBS,

Defendant - Appellant.	(D.C. No. 93-CV-66-E)

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument.

In July 1996, Gary B. Hobbs filed a motion to vacate his sentence, or in the alternative, a motion for correction of sentence, and a motion for release pending proceedings, pursuant to 28 U.S.C. § 2255, in the district court. The district court determined that Mr. Hobbs' motion lacked merit and denied it in March 1997. Mr. Hobbs' July 1996 motion is his third successive motion for relief under § 2255.1

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),2 a second or successive motion for relief under § 2255 is not permitted to be filed in the district court until "the applicant [moves] in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. §§ 2244(b)(3)(A), 2255. In the present case, Mr. Hobbs did not request permission from this court to file his third § 2255 motion in the district court but proceeded instead to file his motion directly with the district court. Consequently, the district court lacked jurisdiction to entertain the motion, and we must vacate its order denying Mr. Hobbs' motion for relief under § 2255.

Although we could remand this action for the district court to enter an order transferring the action back to this court for proper authorization,3 we find that such action would be a waste of judicial resources. Hence, because this appeal from the district court's dismissal of Mr. Hobbs' motion is more properly considered to be an application for leave to file a successive § 2255 motion, we will construe it as such and proceed to determine whether Mr. Hobbs should be permitted to file a second or successive § 2255 motion in the district court. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (treating appellant's notice of appeal and appellate brief as an implied application to file a successive petition pursuant to 28 U.S.C. § 2254).

The court of appeals may authorize the filing of a second or successive § 2255 motion only if a three judge panel certifies that the motion contains:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, 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; see also 28 U.S.C. § 2244(b)(3).

In his brief, Mr. Hobbs argues he is entitled to relief under § 2255 for the following reasons: (1) since his last petition, he has received new evidence which demonstrates that he is not guilty of the crimes to which he pled guilty; and (2) he improperly received a sentence enhancement pursuant to § 3B1.1 of the Sentencing Guidelines for his "leadership role" in the offense. See Appellant's Br. at vi.

We conclude that the new evidence acquired by Mr. Hobbs is irrelevant in light of our earlier finding that his guilty plea was knowing and voluntary. See United States v. Hobbs, No. 93-5048, 1994 WL 101893, at *3 (10th Cir. Mar. 30, 1994). By pleading guilty, Mr. Hobbs waived all nonjurisdictional defects. United States v. Gines, 964 F.2d 972, 977 (10th Cir. 1992); see also Mabry v. Johnson, 467 U.S. 504, 508 (1984) ("It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.").

Furthermore, Mr. Hobbs' argument regarding his sentencing enhancement is procedurally barred. If it is true, as the government asserts, that Mr. Hobbs raises this issue for the first time in this motion, see Appellee's Br. at 3, then his claim is barred by Rule 9(b) because he could have raised this issue in his first or second motions for relief under § 2255.4 See United States v. Richards, 5 F.3d 1369, 1370 (10th Cir. 1993). And if, as Mr. Hobbs asserts, he raised the sentencing issue previously in his second § 2255 motion, see Appellant's Br. at 4, then his claim is barred by this court's decision that the claims in his second motion constituted an abuse of the writ.5 United States v. Hobbs, No. 94-5185, 1995 WL 378434, at *1 (10th Cir. June 27, 1995).

We conclude that Mr. Hobbs has not made a prima facie showing satisfying the AEDPA's requirements for a successive § 2255 motion; therefore, his motion for permission to file successive § 2255 petitions is DENIED. The district court's order denying Mr. Hobbs' § 2255 motion is VACATED, and we REMAND to the district court with instructions to DISMISS Mr. Hobbs' July 1996 § 2255 motion.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge