                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 November 22, 2011
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,
                                                         No. 11-4079
    v.                                         (D.C. Nos. 1:07-CV-00003-DB &
                                                    1:02-CR-00034-DB-1)
    DARRELL EUGENE WASHINGTON,                             (D. Utah)

                Defendant!Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.



         Darrell Eugene Washington, a federal prisoner proceeding pro se, seeks to

appeal the district court’s dismissal of his Fed. R. Civ. P. 60(b) motion for lack of

jurisdiction because it was essentially an unauthorized second or successive

28 U.S.C. § 2255 motion. We deny a certificate of appealability (COA) and

dismiss this proceeding.

         Mr. Washington was sentenced to 360 months of imprisonment for

possession with intent to distribute 50 grams or more of cocaine base and



*
       This order is not binding precedent except under the doctrines of law of the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.
possession of ammunition by a felon. He pursued a direct appeal, see United

States v. Washington, 157 F. App’x 43 (10th Cir. 2005), and relief under § 2255,

see United States v. Washington, 307 F. App’x 238 (10th Cir. 2009) (denying a

COA). In 2010, he filed a Rule 60(b) motion, alleging that the court had failed to

rule on his claim, asserted in his § 2255 motion, that he was legally innocent of

possession with intent to distribute 50 grams or more of cocaine base pursuant to

21 U.S.C. § 841(b)(1)(A). The court concluded that the motion was attempting to

assert unauthorized second or successive § 2255 claims and dismissed it for lack

of jurisdiction. See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam).

      Mr. Washington must obtain a COA to pursue an appeal. United States v.

Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling

rests on procedural grounds, he 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 whether the

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

473, 484 (2000).

      A prisoner’s post-judgment filing (however entitled) should be treated like

a second or successive § 2255 motion (and therefore subject to the authorization

requirements of § 2255(h)) if it asserts or reasserts claims of error in the

prisoner’s conviction. See Gonzalez v. Crosby, 545 U.S. 524, 531-32, 538 (2005);

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United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). But authorization

under § 2255(h) is not required “when a Rule 60(b) motion attacks, not the

substance of the federal court’s resolution of a claim on the merits, but some

defect in the integrity of the federal habeas proceedings.” Gonzalez, 545 U.S. at

532. In Spitznas v. Boone, 464 F.3d 1213, 1225 (10th Cir. 2006), this court held

that an allegation that the district court failed to consider a habeas claim asserts a

defect in the integrity of the federal habeas proceedings, and therefore it does not

require authorization under § 2255(h). Mr. Washington argues that his Rule 60(b)

motion falls within the Spitznas rule. A close examination of Mr. Washington’s

Rule 60(b) motion and the order denying his § 2255 motion, however, reveals that

his real issue is not that the district court failed to address his legal innocence

claim, but how it addressed it.

      In his § 2255 motion, Mr. Washington asserted he was legally innocent of

possession with intent to distribute 50 grams or more of cocaine base pursuant to

§ 841(b)(1)(A) because (1) he was not convicted of an offense involving one

portion (13.2 grams) of the 50 grams, and therefore § 841(b)(1)(A)’s mandatory

minimum should not have been imposed; (2) he did not commit any single

violation involving 50 or more grams of cocaine base; (3) he should have been

sentenced under § 841(b)(1)(B), involving 5 or more grams of cocaine base and

prescribing 5 to 40 years’ imprisonment; and (4) his counsel was ineffective for

not raising these issues during trial, sentencing, and direct appeal. In his

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Rule 60(b) motion, Mr. Washington asserted that the court addressed only his

ineffective-assistance claim, and neglected to address the legal innocence issues.

      In denying relief under § 2255, however, the court rejected the substantive

claims as part of evaluating whether counsel was ineffective. See R. at 49-51. In

fact, the court specifically rejected the concept that drug quantities could not be

aggregated, see id. at 49-50, and also noted that the mandatory maximum and

minimum sentences prescribed by § 841(b)(1)(A) played no role in setting

Mr. Washington’s sentence, id. at 50. Thus, it is apparent that the court addressed

Mr. Washington’s legal-innocence issues in denying his § 2255 motion.

Mr. Washington’s arguments to the contrary were merely disguised attempts to

have the issues decided differently in a reopened proceeding.

      Because at its core Mr. Washington’s Rule 60(b) motion sought renewed

consideration of claims already decided against him, the district court correctly

held that it required authorization under § 2255. See Gonzalez, 545 U.S. at 532.

Without such authorization, the district court had no jurisdiction to consider the

motion and appropriately dismissed it. See In re Cline, 531 F.3d at 1251.

Accordingly, we deny a COA and dismiss this proceeding.



                                               Entered for the Court,



                                               ELISABETH A. SHUMAKER, Clerk

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