                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    May 9, 2016
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 16-3003
 v.                                          (D.C. Nos. 2:14-CV-02035-CM and
                                                   2:09-CR-20046-CM-8)
 VERDALE HANDY,                                           (D. Kan.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, McKAY, and MORITZ, Circuit Judges.


      Verdale Handy, a federal inmate appearing pro se, seeks a certificate of

appealability (COA) allowing him to appeal the denial of his motion to correct

error in a prior habeas proceeding. Fed. R. Civ. P. 60(b). The district court

denied the motion on the merits, rejecting the claim that his due process rights

were violated because the government had not responded to an argument in his

unsuccessful 28 U.S.C. § 2255 motion. United States v. Handy, No. 2:09-cr-

20046-CM (D. Kan. Dec. 18, 2015). Because Mr. Handy’s Rule 60(b) motion is

properly characterized as an attempt to file a second or successive § 2255 motion,

we construe this appeal as an application to file such a motion, and deny the

application. We also vacate the district court’s merits order.
         In 2010, Mr. Handy was convicted of multiple drug trafficking offenses,

attempted murder, and possession and use of a firearm during a crime of violence.

He was sentenced to life imprisonment. Mr. Handy filed a direct appeal, which

this court rejected, affirming his conviction and sentence. United States v.

Handy, 505 F. App’x 682 (10th Cir. 2012), cert. denied, 133 S. Ct. 2751 (2013).

He then filed a § 2255 motion alleging his appellate counsel was constitutionally

ineffective. The district court denied his motion; this court denied a COA and

dismissed the appeal. United States v. Handy, No. 09-20046-08, 2015 WL

3966242 (D. Kan. June 29, 2015), appeal dismissed, 614 F. App’x 379 (10th Cir.

2015).

         In 2015, Mr. Handy filed a Fed. R. Civ. P. 60(b) motion claiming that his

due process rights were violated when the government failed to respond to an

argument in his § 2255 brief that a detective testified falsely at his James hearing.

Motion to Correct Error in Prior Habeas Proceedings at 2, Handy, No. 2:09-cr-

20046-CM, ECF No. 830 (“Prosecutor failure to respond to his briefed claim of

violation of Due Process (fabricated testimony) therefore depriving him of his

right to be fully heard.”). The district court denied the motion on the merits,

explaining that it had expressly rejected the underlying argument in its order on

the § 2255 motion. Handy, No. 2:09-cr-20046-CM, slip op. at 2 (citing Handy,

2015 WL 3966242, at *3 n.2). The court also noted the ostensible Rule 60(b)

motion was “an attempted second bite at the apple.” Id.

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      In the federal post-conviction context, a court sometimes must characterize

a pleading as a true Rule 60(b) motion or a second or successive motion requiring

authorization by this court. Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir.

2006) (explaining the distinction as enunciated in Gonzalez v. Crosby, 545 U.S.

524 (2005)). A second or successive § 2255 motion asserts or reasserts, in

substance or effect, a federal basis for relief from the defendant’s underlying

federal conviction; a true Rule 60(b) motion challenges the federal court’s ruling

on procedural issues or a defect in the integrity of the post-conviction

proceedings. Id. at 1215–16; see also United States v. Baker, 718 F.3d 1204,

1206 (10th Cir. 2013).

      Although alluding to its repetitive character, the district court treated this

as a true Rule 60(b) motion and denied it on the merits. Mr. Handy’s latest

motion, however, is not a true Rule 60(b) motion, it is a second or successive

attempt at post-conviction relief based upon arguments already rejected. It is

simply a collateral attack. Therefore, the district court lacked jurisdiction and we

vacate its disposition on the merits of the underlying motion.

      We construe this, instead, as an application to file a second or successive

motion, authorizing it only if it meets 28 U.S.C. § 2244’s requirements. See 28

U.S.C. §§ 2255(h); 2244(b)(3). Section 2244 prohibits consideration of claims

already argued in a prior application. Id. § 2244(b)(1). Mr. Handy raises only

one claim in his Rule 60(b) motion and, as he admits, it was previously raised in

                                         -3-
his § 2255 motion.

      We VACATE the district court’s order for lack of jurisdiction. Mr.

Handy’s Rule 60(b) motion is construed as an application to file a second or

successive habeas petition, and such application is DENIED. This denial is not

appealable and “shall not be the subject of a petition for rehearing or for a writ of

certiorari.” 28 U.S.C. § 2244(b)(3)(E).



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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