FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   June 24, 2019
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 18-3260
                                           (D.C. No. 2:09-CR-20119-JWL-JPO-10)
 ALFRED ANAYA,                                            (D. Kan.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH , Chief Judge, MATHESON, and MORITZ, Circuit
Judges. **


      A Kansas jury convicted Alfred Anaya on two counts of witness

intimidation and one count of conspiracy to distribute cocaine, methamphetamine,

and marijuana. The court sentenced Anaya to 240 months for witness

intimidation and 292 months for conspiracy to distribute drugs, the sentences to


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
run concurrently. Three years later the district court reduced the drug conspiracy

sentence to 235 months, pursuant to 28 U.S.C. § 3582(c)(2).

      Another three years went by before Anaya filed this current action—styled

as a Motion Pursuant to Rule 52(b) Plain Error. In that motion Anaya sought to

overturn his conviction, contending that (1) the federal district court lacked

jurisdiction to convict him, (2) the government failed to present sufficient

evidence of mens rea, and (3) he received ineffective assistance of counsel at

sentencing.

      The district court dismissed the case for lack of jurisdiction on grounds that

the motion was a collateral attack on the validity of Anaya’s sentence, which must

be brought under 28 U.S.C. § 2255. The court also declined to recharacterize

Anaya’s motion as one filed under § 2255 “in light of the potential consequences

of that recharacterization.” R., Vol. VI at 34.

      We affirm. We have no jurisdiction to consider a collateral attack on a

sentence not brought under § 2255, and the district court did not abuse its

discretion in declining to recharacterize Anaya’s motion.

      Section 2255 provides the only post-direct-appeal avenue for testing

whether a “sentence was imposed in violation of the Constitution or laws of the

United States” or whether “the court was without jurisdiction to impose such

sentence.” 28 U.S.C. § 2255; see also Bradshaw v. Story, 86 F.3 164, 166 (10th


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Cir. 1996). These are precisely the arguments Anaya made in his motion. The

district court therefore did not err in concluding it lacked jurisdiction to reach the

merits of Anaya’s claims.

      The district court also did not abuse its discretion in declining to

recharacterize Anaya’s motion as one pursuant to § 2255. As the court alluded,

the Antiterrorism and Effective Death Penalty Act “places strict limitations on

second or successive claims,” so recharacterizing Anaya’s motion would severely

curtail any subsequent claim he wished to bring. Davis v. Roberts, 

,

835 (10th Cir. 2005); Castro v. United States, 

, 377 (2003).

      Consequently, a district court rarely abuses its discretion when it declines

to recharacterize a procedurally improper motion—recognizing that a “risk of

harming the litigant always exists when the court recharacterizes into a first

§ 2255 motion a claim that is procedurally or substantively deficient.” 

(Scalia, J., concurring). The risk is that recharacterizing

“essentially substitutes the litigant’s ability to bring his merits claim now, for the

litigant’s later ability to bring the same claim (or any other claim), perhaps with

stronger evidence.” 

risk of harm is more likely with pro se litigants,

for “even fully informed district courts that try their best not to harm pro se

litigants by recharacterizing may nonetheless end up doing so because they cannot




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predict and protect against every possible adverse effect that may flow from

recharacterization.” 

AFFIRM the district court’s dismissal of Anaya’s motion.

The district court correctly concluded that without recharacterizing Anaya’s

motion it lacked jurisdiction to consider the merits of the claims. And the court

did not abuse its discretion in declining to recharacterize the procedurally

improper motion as Anaya’s first § 2255 petition.

                                                     ENTERED FOR THE COURT


                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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