                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          August 28, 2014
                                   TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,
                                                             No. 14-8030
 v.                                               (D.C. Nos. 2:11-CV-00229-NDF &
                                                       2:07-CR-00196-CAB-5)
 JASON CLAYCOMB,                                           (D. Wyoming)
        Defendant - Appellant.



                                        ORDER


Before HARTZ, McKAY, and MATHESON, Circuit Judges.



      In this proceeding we examine whether a motion under Fed. R. Civ. P. 60(b)(3)

was a proper motion under that Rule or merely a disguised second-or-successive motion

under 28 U.S.C. § 2255.

      Defendant Jason Claycomb was convicted in the United States District Court for

the District of Wyoming on three charges: conspiring to distribute 500 or more grams of

methamphetamine and cocaine, possessing a machine gun in furtherance of a drug-

trafficking crime, and possessing an unregistered firearm. After an unsuccessful direct

appeal, he filed a motion under 28 U.S.C. § 2255 alleging ineffective assistance of
counsel. Relevant to this appeal, he argued that his counsel was ineffective for failing to

object to testimony of government witnesses that amounted to hearsay about the findings

by government chemists concerning the quantity of drugs seized by law-enforcement

officers. He asserted that without the testimony of these witnesses, the jury would have

found less than 50 grams of methamphetamine. The government responded that the

challenged testimony was inconsequential because lay testimony by Defendant’s

confederates and his telephone calls recorded while in jail established quantities far

exceeding 500 grams, and “there is no requirement that the evidence relied upon by a jury

to find a drug quantity attributable to a conspiracy as a whole must be scientific in nature

or be provided only by laboratory technicians or forensic scientists.” R., Vol. 1 at 93.

The district court agreed with the government and denied relief on that claim. The court

also denied the motion with respect to the machine-gun conviction but vacated the

unregistered-firearm conviction. We denied a certificate of appealability (COA).

       Defendant then filed a motion under Fed. R. Civ. P. 60(b)(3) arguing that the

government had engaged in fraud on the district court during his § 2255 proceeding by

arguing that lay testimony could establish drug quantity, because the government knew

that the law of the case had been established by a jury instruction (stipulated to by the

government) requiring the government to prove that “the overall scope of the conspiracy

involved 500 grams or more of a mixture or substance containing a detectable amount of

methamphetamine and a detectable amount of cocaine.” Id. at 241–42 (internal quotation

marks omitted). (We do not pretend to understand the law-of-the-case legal theory
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behind this argument. But that is irrelevant.) The district court determined that

Defendant’s motion was a second-or-successive § 2255 habeas motion insofar as it was

rearguing the legal standard for establishing drug quantity, but that even if it was a proper

Rule 60(b) motion, there was no fraud. It denied Defendant’s motion.

       Defendant now seeks a COA from this court to appeal the denial. See Dulworth v.

Jones, 496 F.3d 1133, 1136 (10th Cir. 2007) (“[A]ll appeals from final orders in habeas

cases, of whatever type, should be required to meet the COA standard to proceed”);

Spitznas v. Boone, 464 F.3d 1213, 1217–19 (10th Cir. 2006) (COA required to review

district-court denial of true Rule 60(b) motion in proceedings under 28 U.S.C. § 2254).

We dismiss the appeal because Defendant did not file a true Rule 60(b) motion but a

second-or successive § 2255 motion. We also remand with directions to the district court

to dismiss the case because it lacked jurisdiction over such a motion. Further, we

construe Defendant’s petition for a COA as a request for authorization to bring a second-

or-successive § 2255 motion and deny that request.

       Under 28 U.S.C. § 2255(h) a district court lacks jurisdiction to hear a second-or-

successive § 2255 motion unless the motion has been certified by a court of appeals

under 28 U.S.C. § 2244. To avoid this constraint, prisoners occasionally try to disguise a

second-or-successive motion as a motion under Rule 60(b) challenging the district court’s

denial of the original § 2255 motion. Distinguishing a proper Rule 60(b) motion from an

improper second-or-successive § 2255 motion can sometimes be challenging. But there

is no great difficulty here. “[W]hether a postjudgment pleading should be construed as a
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successive application depends on whether the pleading (1) seeks relief from the

conviction or sentence or (2) seeks to correct an error in the previously conducted habeas

proceeding itself.” United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). If the

pleading is in essence raising a challenge to the judgment of conviction or the merits of

the decision in the original § 2255 proceeding, then we treat it as a successive § 2255

application. See id. But if the pleading “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, then it is not . . . a successive petition.” Id. (internal quotation marks

omitted).

       Let us examine what Defendant is arguing here. The alleged fraud by the

government is its argument that the quantity of drugs attributable to Defendant could be

proved by lay testimony. If Defendant is correct, then the quantity could not be

established by that testimony and the district court was wrong on the merits in resolving

his original § 2255 motion. Thus, if this were a proper Rule 60(b) motion, any time a

defendant disagreed with a legal argument of the government that was adopted by the

court, the defendant could argue that the government knew its argument was wrong and

seek a second bite at the apple—a second challenge to “the substance of the federal

court’s resolution of [the habeas] claim on the merits,” Nelson, 465 F.3d at 1147 (internal

quotation marks omitted)—by filing a motion under Rule 60(b)(3). This we cannot

countenance. As we stated in In re Pickard, 681 F.3d 1201, 1206 (10th Cir. 2012), “[A]

Rule 60(b) motion is actually a second-or-successive petition if the success of the motion
                                              4
depends on a determination that the court had incorrectly ruled on the merits in the

habeas proceeding.” Defendant’s purported Rule 60(b) motion is such a motion and must

be treated as a second-or-successive § 2255 motion.

       To avoid further proceedings on this matter, however, we will treat Defendant’s

pleadings in this case as an implied application for leave to file a second § 2255 motion.

See Nelson, 465 F.3d at 1149. A court of appeals will authorize a successive motion only

if it contains:

       (1) newly discovered evidence that, if proven and viewed in light of the
       evidence as a whole, would be sufficient to establish by clear and
       convincing evidence that no reasonable factfinder would have found the
       movant guilty of the offense; or
       (2) a new rule of constitutional law, made retroactive to cases on collateral
       review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). Defendant alleges neither newly discovered evidence nor a new

rule of law that applies retroactively. Accordingly, we deny authorization to file a

second-or-successive motion.

       We DISMISS the appeal and REMAND with instructions to the district court to

dismiss Defendant’s purported Rule 60(b) motion for lack of jurisdiction. We also

DENY authorization to file a second-or-successive § 2255 motion, and we DENY

Defendant’s requests to proceed in forma pauperis and to take judicial notice.


                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge

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