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

                             FOR THE TENTH CIRCUIT                               October 2, 2018
                         _________________________________
                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 18-8047
                                                      (D.C. No. 1:13-CR-00170-ABJ-1)
 JOHN SCOTT PINKERTON,                                            (D. Wyo.)

       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, HARTZ, and MORITZ, Circuit Judges.
                  _________________________________

       John Scott Pinkerton, a federal prisoner proceeding pro se, seeks to appeal the

district court’s decision construing his motion for relief under Fed. R. Civ. P. 60(d)(3)1 as

a second or successive 28 U.S.C. § 2255 motion and dismissing it for lack of jurisdiction.

To appeal from that dismissal, he must obtain a certificate of appealability (COA).

See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). For the reasons that

follow, we deny a COA and dismiss this matter.




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       1
         That portion of Rule 60 states: “This rule does not limit a court’s power to: . . .
set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3).
       Mr. Pinkerton pleaded guilty to one count of attempted online enticement of a

minor in violation of 18 U.S.C. § 2422(b). He was sentenced to 120 months in prison.

He did not file a direct appeal, but he later filed a § 2255 motion. The district court

dismissed the § 2255 motion as time-barred. Mr. Pinkerton did not seek a COA to appeal

from that dismissal.

       Since the dismissal of his § 2255 motion, Mr. Pinkerton has filed a number of

unsuccessful post-judgment motions attempting to collaterally attack his conviction.

Most recently, he filed the underlying Rule 60(d)(3) motion in which he requested that

the district court dismiss his indictment and judgment with prejudice based on fraud on

the court. The district court determined that Mr. Pinkerton’s Rule 60(d)(3) motion was

an unauthorized second or successive § 2255 motion and dismissed it for lack of

jurisdiction. The district court then denied a COA.

       Mr. Pinkerton now seeks a COA to appeal from the district court’s decision.2 To

obtain a COA from the district court’s procedural ruling, Mr. Pinkerton must show “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 whether

the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000).

       A pleading should be treated as a second or successive § 2255 motion “if it in

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


       2
        We construe the brief Mr. Pinkerton filed as a combined application for a COA
and an opening brief.
                                               2
underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). “It is

the relief sought, not [the] pleading’s title, that determines whether the pleading is a

§ 2255 motion.” United States v. Nelson, 465 F.3d 1145 (10th Cir. 2006). 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.

§ 2244(b)(3)(A); id. § 2255(h). 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).

       The district court observed that Mr. Pinkerton argued the following in his Rule

60(d)(3) motion: “Title 18 of the United States Code was not properly enacted in 1948,

therefore 18 U.S.C. § 3231 is not a law, thus the indictment and judgment in this case are

based on fraud on the court by the Prosecutor and Judge . . .” R., Vol. 5 at 55 (internal

quotation marks and citations omitted). The court concluded this was “a straightforward

challenge to the legality of [Mr. Pinkerton’s] conviction and sentence[;] [i]t ‘in substance

or effect asserts or reasserts a federal basis for relief from [his] underlying conviction.’”

Id. at 56 (quoting Spitznas, 464 F.3d at 1215-16). The court therefore determined that the

Rule 60(d)(3) motion must be treated as a second or successive § 2255 motion. Because

Mr. Pinkerton had not received the proper authorization from this court to file a second or

successive § 2255 motion, the district court dismissed it for lack of jurisdiction.

       Mr. Pinkerton first argues that the district court should not have recharacterized

his Rule 60(d)(3) motion as a § 2255 motion, citing to the Supreme Court’s decision in

Castro v. United States, 540 U.S. 375 (2003). In Castro, the Court agreed with a number

                                              3
of appellate courts, including ours, “that a district court may not recharacterize a pro se

litigant’s motion as a request for relief under § 2255—unless the court first warns the pro

se litigant about the consequences of the recharacterization, thereby giving the litigant the

opportunity to contest the recharacterization, or to withdraw or amend the motion.”

540 U.S. at 382. The Court explained, however, that this limitation on the district courts’

recharacterization powers applied only “when a court recharacterizes a pro se litigant’s

motion as a first § 2255 motion.” Id. at 383 (emphasis added). We have likewise held

that this restriction on recharacterization does not apply where the prisoner previously

filed a § 2255 motion. See Nelson, 465 F.3d at 1149. Because Mr. Pinkerton had

previously filed a § 2255 motion before he filed the underlying Rule 60(d)(3) motion, the

Castro decision did not limit the district court’s ability to recharacterize the Rule 60(d)(3)

motion as a § 2255 motion.

       Mr. Pinkerton next argues that he “had an absolute right to file a [Rule] 60(d)(3)

Motion and not have it reconstrued as anything else.” COA Br. at 4. In United States v.

Baker, 718 F.3d 1204, 1206 (10th Cir. 2013), we rejected the assertion “that a motion

invoking the district court’s inherent power to set aside a judgment obtained through

fraud on the court is not subject to the certification requirements in § 2255(h) if it is

brought under Fed. R. Civ. P. 60(d)(3) . . . .” We acknowledged that a pleading “alleging

fraud on the court in a federal habeas proceeding” could be properly brought in a motion

under Fed. R. Civ. P. 60(b). Baker, 718 F.3d at 1207 (emphasis added). “But a motion

alleging fraud on the court in a defendant’s criminal proceeding must be considered a

second-or-successive collateral attack because it asserts or reasserts a challenge to the

                                               4
defendant’s underlying conviction.” Id. Because Mr. Pinkerton’s Rule 60(d)(3) motion

alleged fraud on the court in his criminal proceeding, reasonable jurists could not debate

the district court’s decision to construe it as a second or successive § 2255 motion and

dismiss it for lack of jurisdiction.

       Accordingly, we deny a COA and dismiss this matter. We grant Mr. Pinkerton’s

motion to proceed on appeal without prepayment of costs or fees.


                                             Entered for the Court



                                             ELISABETH A. SHUMAKER, Clerk




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