United States of America v. Daminion T. Titties

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMINION T. TITTIES,
Defendant - Appellant.
No. 21-6107
(D.C. Nos. 5:15-CR-00018-R-1 &
5:19-CV-00592-R)
(W.D. Okla.)
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ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before BACHARACH, EID, and CARSON, Circuit Judges.
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Daminion T. Titties, proceeding pro se, seeks a certificate of appealability (COA)
to appeal the district court’s dismissal of his “Motion for Modification or Reduction of
Sentence Under 18 U.S.C. § 3582(b)(3)” as an unauthorized second or successive
28 U.S.C. § 2255 motion. We deny a COA.
I. Background
Mr. Titties pled guilty to being a felon in possession of a firearm. He was
originally sentenced to 188 months in prison because his sentence was enhanced under
the Armed Career Criminal Act (ACCA), but we reversed and remanded for him to be
resentenced without the ACCA enhancement. He was resentenced to 120 months in
prison. We dismissed his appeal challenging his 120-month sentence after granting the
government’s motion to enforce the appeal waiver in his plea agreement. He later filed a
FILED
United States Court of Appeals
Tenth Circuit
November 16, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-6107 Document: 010110605431 Date Filed: 11/16/2021 Page: 1

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§ 2255 motion, raising a claim of ineffective assistance of counsel related to his guilty
plea and a claim of sentencing error based on the application of U.S. Sentencing
Guidelines Manual (USSG) § 2K2.1(b)(6)(B) (U.S. Sent’g Comm’n 2016). The district
court denied the motion as untimely and Mr. Titties did not appeal.
He subsequently filed a “Motion for Modification or Reduction of Sentence Under
18 U.S.C. § 3582(b)(3).” In the motion, he again argued that the district court erred in
applying USSG § 2K2.1(b)(6)(B) to enhance his sentence. He requested that the
enhancement be removed and that his sentence be reduced. In its order, the district court
explained that § 3582(b)(3) addresses the finality of a conviction and does not provide a
basis for modification of a sentence. The district court further explained that § 2255 was
the exclusive remedy for a federal prisoner to challenge his sentence and that
Mr. Titties’s § 3582(b)(3) motion seeking relief from his sentence should be treated as a
§ 2255 motion. Because he had not received authorization to file a second or successive
§ 2255 motion, the district court dismissed the motion for lack of jurisdiction. Mr. Titties
now appeals from that dismissal.
II. Discussion
To appeal the district court’s dismissal of his § 3582(b) motion as an unauthorized
second or successive § 2255 motion, Mr. Titties must obtain a COA. See United States v.
Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). To obtain a COA where, as here, a
district court has dismissed a filing on procedural grounds, the movant must show both
“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
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whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). We need not address the constitutional question if we
conclude that reasonable jurists would not debate the district court’s resolution of the
procedural one. Id. at 485.
A prisoner may not file a second or successive § 2255 motion unless he first
obtains an order from the circuit court authorizing the district court to consider the
motion. 28 U.S.C. § 2255(h); id. § 2244(b)(3)(A). Absent such authorization, a district
court lacks jurisdiction to address the merits of a second or successive § 2255 motion.
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
In his COA application, Mr. Titties does not explain how the district court erred in
treating his § 3582(b)(3) motion as an unauthorized second or successive § 2255 motion
and dismissing it for lack of jurisdiction. Instead, he simply reasserts his argument that
his sentence was improperly enhanced under USSG § 2K2.1. Mr. Titties has failed to
show that reasonable jurists would debate the correctness of the district court’s
procedural ruling.
III. Conclusion
For the foregoing reasons, we deny a COA and dismiss this matter. We grant
Mr. Titties’s motion for leave to proceed on appeal without prepayment of costs or fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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