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

                                   TENTH CIRCUIT                             May 14, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,
                                                             No. 13-4004
 v.                                               (D.C. Nos. 2:12-CV-00204-TS and
                                                        2:08-CR-00733-TS-1)
 MATTHEW SCOTT SIMPSON,                                       (D. Utah)
           Defendant–Appellant.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Matthew Scott Simpson, a federal prisoner appearing pro se, seeks a certificate of

appealability (“COA”) to challenge the district court’s orders denying his 28 U.S.C.

§ 2255 habeas petition and his subsequent motion to reconsider. We deny a COA and

dismiss the appeal.




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
                                              I

       Simpson was charged with one count of possession of methamphetamine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He pled guilty in the United

States District Court for the District of Utah pursuant to a plea agreement. At a change of

plea hearing, Simpson’s counsel stated that the government had agreed to recommend

that Simpson receive credit for time already served. The government replied, “[n]o

objection to that, Your Honor.” The trial judge stated that this would be noted for the

record. Simpson was sentenced to ninety months’ imprisonment, in compliance with the

plea agreement; however, he did not receive credit for all of his time served in federal

custody prior to sentencing.

       Simpson filed a 28 U.S.C. § 2255 petition arguing that the government had

breached the plea agreement because he had not properly received credit for time served.

The district court denied a COA, determining that the government had not breached the

agreement. Simpson then filed a motion to reconsider, which the district court concluded

was a second or successive § 2255 petition and dismissed for lack of jurisdiction without

transferring the petition to our court. Simpson timely appealed both of these decisions.

                                             II

       A petitioner may not appeal the district court’s denial of habeas relief without a

COA. § 2253(c)(1)(B). We will grant a COA only if the petitioner demonstrates “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were adequate to
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deserve encouragement to proceed further.” Slack v. McDaniel, 

, 484

(2000) (quotation omitted). We construe Simpson’s pro se filings liberally. Erickson v.

Pardus, 

, 94 (2007) (per curiam).

       First, Simpson challenges the district court’s denial of his initial § 2255 habeas

petition. He argues that the government breached the plea agreement because he did not

receive credit for time served. The party asserting a breach bears the burden of proving

the underlying facts by a preponderance of the evidence. Allen v. Hadden, 

,

1534 (10th Cir. 1995). “This Circuit uses a two-step analysis to determine whether the

United States violated a plea agreement: the sentencing court should 1) examine the

nature of the promise; and 2) evaluate the promise in light of the defendant’s reasonable

understanding of the promise at the time of the guilty plea.” United States v. Guzman,

, 1195-96 (10th Cir. 2003).

       The district court properly determined that the government did not breach the plea

agreement. As noted above, the government stated it had no objection to Simpson

receiving credit for time served; the record does not reflect that the government

advocated otherwise. Moreover, the determination of a sentence credit is a matter left to

the Federal Bureau of Prisons (“BOP”) under 18 U.S.C. § 3585(b). Section 3585(b)

allows a federal defendant to be given credit toward his federal term of imprisonment

only if that time “has not been credited against another sentence.” § 3585(b)(2).

Applying § 3585(b), the BOP did not credit all of Simpson’s time served prior to

sentencing because part of it had been spent serving a sentence issued by the State of
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Arizona. We conclude that the district court properly dismissed Simpson’s first § 2255

petition.

       Second, Simpson claims that it was erroneous for the district court to deny his

motion for reconsideration after construing it as a second or successive § 2255 habeas

petition, and he argues that the interests of justice require this court to consider whether

his plea agreement was breached. The district court properly construed Simpson’s

motion for reconsideration, filed pursuant to Rule 59(e), as a second or successive habeas

petition. A Rule 59(e) “motion is a second or successive petition if it in substance or

effect asserts or reasserts a federal basis for relief from the petitioner’s underlying

conviction.” Spitznas v. Boone, 

, 1215 (10th Cir. 2006) (construing a Rule

60(b) motion); United States v. Pedraza, 

, 933-34 (10th Cir. 2006) (holding

that Rule 59(e) motions must be construed like Rule 60(b) motions in the second or

successive habeas context). Simpson’s motion for reconsideration argues that the

government breached his plea agreement because he did not receive credit for time

served—precisely as his first § 2255 petition did.

       The district court did not abuse its discretion in determining that it was not in the

“interest of justice” to transfer the motion to our court for authorization. See In re Cline,

, 1251 (10th Cir. 2008) (“Factors considered in deciding whether a transfer

is in the interest of justice include . . . whether the claims alleged are likely to have merit

. . . .”). As stated above, Simpson’s claim that the government breached the plea

agreement lacks merit. The district court was therefore correct to determine that there
                                              -4-
was no risk that a meritorious claim would be lost absent a transfer to our court. 

there is no risk that a meritorious successive claim will be lost absent a §

1631 transfer, a district court does not abuse its discretion if it concludes it is not in the

interest of justice to transfer the matter to this court for authorization.”).

       Finally, we reject Simpson’s argument that the Supreme Court’s decisions in

Missouri v. Frye, 

(2012), and Lafler v. Cooper, 

(2012),

authorize us to consider his second or successive § 2255 motion. We recently rejected

this claim in In re Graham, No. 13-3082, 

(10th Cir. Apr. 23, 2013) (to

be published in F.3d), holding that neither case satisfies § 2255(h)(2) because they do not

establish a new rule of constitutional law. Graham, 

at *2. We

conclude that that the district court properly dismissed Simpson’s motion for

reconsideration for lack of jurisdiction without transferring the motion to our court.

                                               III

         For the foregoing reasons, we DENY a COA and DISMISS the appeal.

                                             Entered for the Court



                                             Carlos F. Lucero
                                             Circuit Judge




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