                                                                            FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS
                                                                      September 26, 2007
                                                                      Elisabeth A. Shumaker
                                   TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                              No. 06-8092
 v.                                                      (D.C. No. 05-CR-78-J)
                                                               (D. Wyo.)
 GREGORY E. GRAHAM,

        Defendant - Appellant.




                                         ORDER *


Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.


       Defendant-Appellant Gregory E. Graham, a federal prisoner proceeding pro se,

appeals the district court’s denial of his Federal Rules of Civil Procedure 60(b) motion,

which was filed during the pendency of his direct appeal from his criminal conviction. In

that motion, Mr. Graham challenged the validity of his conviction for lack of subject

matter jurisdiction. We dismiss the appeal because it is procedurally defective.



        * After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause
is therefore ordered submitted without oral argument. This order is not binding precedent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.
                                   I. BACKGROUND

       Mr. Graham was charged with one count of conspiracy to distribute and to possess

with intent to distribute cocaine base, and to use a place where cocaine base is

manufactured, distributed and used, in violation of 21 U.S.C. §§§ 846, 841(a)(1)(A), and

856(a)(1). After seven days of jury trial, Mr. Graham pleaded guilty. Although he

subsequently moved to withdraw his guilty plea, the district court denied his request and

sentenced him to 300 months’ imprisonment. Mr. Graham timely appealed the district

court’s November 7, 2005 judgment. He challenged the denial of his motion to withdraw

his guilty plea. See United States v. Graham, 466 F.3d 1234 (10th Cir. 2006).

       On May 30, 2006, while his direct appeal was pending, Mr. Graham filed a

pleading entitled “Motion to Vacate FRCivP Rule 60 (b)(4) by Restricted Appearance and

Special Visitation.” He claimed that the criminal judgment was void ab initio because:

(1) the United States of America is an entity separate from the United States, thus the

United States of America did not have standing to prosecute him; (2) the court committed

fraud on him by prosecuting him under admiralty and maritime jurisdiction instead of

criminal jurisdiction as represented to him; (3) the federal scheme impermissibly fosters

“class discrimination” by systematically excluding “State” citizens (as distinct from

“federal” citizens) from serving on grand juries and trial juries; and (4) the indictment

failed to state a claim.

       Although Mr. Graham filed his motion in his original criminal case, the court clerk

opened a civil case on receipt of Mr. Graham’s motion. Before denying his motion on the

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merits, the district court first noted that the court clerk misinterpreted the import of Mr.

Graham’s Rule 60(b) motion by classifying it as one brought under 28 U.S.C. § 2255.

Therefore, the court dismissed the civil case without prejudice. Second, the district court

denied Mr. Graham’s Rule 60(b) motion finding that the Federal Rules of Civil Procedure

did not apply in criminal cases. The court referred Mr. Graham to 28 U.S.C. § 2255 for

guidance regarding the appropriate means for raising his challenges.

       On August 3, 2006, Mr. Graham filed a pleading entitled “Motion for

Reconsideration and Declaratory Judgment” which the court denied, on October 23,

2006. Not satisfied, Mr. Graham subsequently filed a “Motion for Default Judgment”

which the court likewise denied.

       Mr. Graham filed his notice of appeal on November 3, 2006 challenging the

district court’s “denial of his Motion to Vacate Judgement [sic] ab initio, pursuant to Fed

Rules of Civil Procedure, Rule 60(b)(4).” See R. Vol. I, Doc. 10, at 1 (Notice of Appeal,

dated November 3, 2006.)

                                     II. DISCUSSION

       We accept, as did the district court, Mr. Graham’s characterization of his motion as

one filed pursuant to Federal Rules of Civil Procedure 60(b). As an initial matter, we

agree with the district court that Rule 60(b) is not applicable in criminal cases. See

United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (per curium); United States v.

Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (per curium). However, we conclude that

the district court did not have jurisdiction to deny Mr. Graham’s Rule 60(b) motion on

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this, or any, basis.

       “The filing of a notice of appeal [pursuant to Federal Rules of Appellate Procedure

3] is an event of jurisdictional significance – it confers jurisdiction on the court of appeals

and divests the district court of its control over those aspects of the case involved in the

appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per

curium); United States v. Meyers, 95 F.3d 1475, 1489 n.6 (10th Cir. 1996). Further, Rule

60(b) is not an independent source of jurisdiction. United States v. Ramirez, 211 Fed.

Appx. 712, 714 (10th Cir. 2007) (unpublished); United States v. Triplett, 166 Fed. Appx.

362, 365-66 (10th Cir. 2006) (unpublished).

       Lacking jurisdiction to entertain the Rule 60(b) motion, the district court could

have either dismissed it for lack of jurisdiction, or recharacterized it as a motion

cognizable under the federal criminal rules. Triplett, 166 Fed. Appx. at 366.

Recharacterization of the latter type would have been futile: no post-judgment motion

under a relevant federal criminal rule would have afforded Mr. Graham any relief

“because of time limits and subject matter.” Id. And another possible avenue of

recharacterization – recharacterization to a petition under 28 U.S.C. § 2255 – was

foreclosed by Mr. Graham’s specific contrary request.1 Therefore, the only appropriate




       1
         In his response to a government filing, Mr. Graham wrote, “[t]he face of [the]
Rule 60(b) Motion states specifically said Motion is a Rule 60(b) not a 28 USC, § 2255
[motion]. A 28 USC, § 2255 Motion would be untimely because of the ongoing direct
appeal.” R. Vol. I, Doc. 5, at 2 (Petitioner’s Response to Government’s Motion to
Dismiss Petitioner’s Motion to Vacate, filed June 13, 2006.)

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course of action open to the district court was to dismiss Mr. Graham’s motion for lack of

jurisdiction. But it did not follow this course. We rectify its error on appeal.

       Because the district court did not have jurisdiction to deny Mr. Graham’s Rule

60(b) motion, we vacate the district court’s order denying the motion and direct the

district court to dismiss it.

                                   III. CONCLUSION

       For the foregoing reasons, the judgment of the district court is VACATED, and

the case is REMANDED for entry of an order dismissing for lack of jurisdiction Mr.

Graham’s Federal Rules of Civil Procedure 60(b) motion.

                                           Entered for the Court



                                           Jerome A. Holmes
                                           Circuit Judge




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