United States v. Chon

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TAE H. CHON,

Defendant - Appellant.

No. 20-4009
(D.C. Nos. 1:19-CV-00135-TS &
2:01-CR-00487-TS-1)
(D. Utah)
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ORDER DENYING CERTIFICATE OF APPEALABILITY


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Before HOLMES, PHILLIPS, and MORITZ, Circuit Judges.
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Tae H. Chon seeks a certificate of appealability (COA) to appeal from the district
court’s dismissal of his 28 U.S.C. § 2241 application as an unauthorized second or
successive 28 U.S.C. § 2255 motion. We deny a COA and dismiss this matter.
A jury convicted Mr. Chon of one count of possessing pseudoephedrine in
violation of 21 U.S.C. § 841(c)(2). After this court affirmed, see United States v. Chon,
291 F. App’x 877, 883 (10th Cir. 2008), Mr. Chon filed several unsuccessful collateral
challenges, including a § 2255 motion. This matter concerns a November 2019 filing,
purportedly under § 2241, arguing that Mr. Chon’s conviction violated the Ex Post Facto


This order is not binding precedent except under the doctrines of law of the case,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.
FILED
United States Court of Appeals
Tenth Circuit

May 6, 2020

Christopher M. Wolpert
Clerk of Court
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Clause. The district court determined the filing must be treated as an unauthorized
second or successive § 2255 motion. See United States v. Nelson, 465 F.3d 1145, 1148
(10th Cir. 2006) (“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 . . . .” (internal quotation marks omitted)). It declined to transfer the filing
to this court for authorization, instead dismissing it for lack of jurisdiction. See 28 U.S.C.
§ 2255(h); In re Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008) (per curiam).
To appeal, Mr. Chon must obtain a COA. See United States v. Harper, 545 F.3d
1230, 1233 (10th Cir. 2008). That requires him to 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). Before this court,
Mr. Chon primarily focuses on the merits of his ex post facto claim. We do not consider
the merits, however, because no reasonable jurist could debate the district court’s
procedural decision to dismiss the motion for lack of jurisdiction.
Having already pursued relief under § 2255, Mr. Chon must obtain this court’s
authorization before filing another § 2255 motion in the district court. See 28 U.S.C.
§ 2255(h). He cannot evade this requirement by titling his filing as something other than
a § 2255 motion, because “[i]t is the relief sought, not his pleading’s title, that determines
whether the pleading is a § 2255 motion.” Nelson, 465 F.3d at 1149. “[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.
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Mr. Chon does not challenge the determination that his filing must be treated as a
§ 2255 motion. Instead, he asserts that because he has a due process right to a writ of
habeas corpus, “subject matter jurisdiction for the appeal of the dismissal of [his] § 2241
petition or § 2255 motion exists through the Sanders exception (Califano v. Sanders,
430 U.S. 99, 109 (1977)) to jurisdictional limitations.” Aplt. Opening Br./COA Appl.
at 4. Califano, which involved administrative review, acknowledged “the
well-established principle that when constitutional questions are in issue, the availability
of judicial review is presumed, and we will not read a statutory scheme to take the
extraordinary step of foreclosing jurisdiction unless Congress’ intent to do so is
manifested by clear and convincing evidence.” 430 U.S. at 109 (internal quotation marks
omitted). But even assuming Califano applies in the context of post-conviction relief,
§ 2255(h) and 28 U.S.C. § 2244(b) are clear and convincing evidence that Congress
intended to foreclose the federal courts’ jurisdiction to review Mr. Chon’s belated
constitutional claim.
No reasonable jurist could debate the district court’s decision to dismiss
Mr. Chon’s unauthorized filing for lack of jurisdiction, see Nelson, 465 F.3d at 1148-49,
or its decision to dismiss rather than to transfer the filing to this court for authorization,
see Cline, 531 F.3d at 1252. We therefore deny a COA and dismiss this matter.
Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk
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