                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 16 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-4080
                                                     (D.C. No. 96-CV-619)
    RUBEN TOVAR,                                           (D. Utah)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before BALDOCK , EBEL , and MURPHY , 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. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       The district court denied defendant-appellant Ruben Tovar’s motion for

habeas relief filed pursuant to 28    U.S.C. § 2255. Over four months later,

Mr. Tovar filed a motion for reconsideration which the district court construed as

a motion seeking relief pursuant to    Fed. R. Civ. P. 60(b). The district court

denied the motion and Mr. Tovar appeals.

       Initially we must address whether we have jurisdiction over this appeal.

We recently held that a post-judgment Rule 60(b)(6) motion filed in a habeas

proceeding is “a second habeas petition under the Antiterrorism and Effective

Death Penalty Act of 1996 (‘AEDPA’).” 1 Lopez v. Douglas, 141 F.3d 974, 975

(10th Cir. 1998) (Rule 60(b) motion filed after entry of judgment on 28 U.S.C.

§ 2254 petition). We emphasized that the restrictions imposed on successive

petitions by AEDPA, 28 U.S.C. § 2244(b), cannot be circumvented by a

petitioner’s use of Rule 60(b). See id.

       Pursuant to § 2244(b), Mr. Tovar was required to obtain prior

authorization from this court before filing a second § 2255 motion in district

court. As he failed to obtain this authorization, the district court lacked

jurisdiction to decide his motion and we must vacate the district court’s order.




1
       Mr. Tovar filed both his § 2255 motion and his Rule 60(b) motion after the
effective date of AEDPA.

                                            -2-
See id. at 975-76; United States v. Avila-Avila, 132 F.3d 1347, 1348-49 (10th

Cir. 1997).

      We construe Mr. Tovar’s notice of appeal and brief on appeal as an

implied application for leave to file a second § 2255 motion in district court. See

Lopez, 141 F.3d at 976. In his implied application, Mr. Tovar argues that the

district court did not consider mitigating factors which would warrant a

downward departure in his sentence. Mr. Tovar also contends his constitutional

protections of equal protection and due process were violated by the Sentencing

Commission’s decision to give preferential treatment to American citizens.

      Mr. Tovar has failed to make a prima facie sufficient to satisfy the AEDPA

criteria for filing of a second habeas application. See § 2244(b)(3)(C).

Accordingly, we VACATE the district court’s order denying Mr. Tovar’s “motion

for reconsideration” and we DENY the implied application for leave to file a

second § 2255 motion in district court. The government’s motion to dismiss this

appeal for lack of jurisdiction to consider the district court’s decision not to

downwardly depart is DENIED as moot.       The mandate shall issue forthwith.

                                                      Entered for the Court



                                                      Michael R. Murphy
                                                      Circuit Judge



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