                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           March 22, 2006
                            FOR THE TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                            Clerk of Court


    FREDERICK GRAY,

                Petitioner-Appellant,

    v.                                                     No. 05-6216
                                                     (D.C. No. CIV-00-562-L)
    MIKE MULLIN, Warden,                                   (W.D. Okla.)

                Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.



         Petitioner Frederick Gray seeks to appeal, for the second time, the district

court’s dismissal of his 28 U.S.C. § 2254 application for writ of habeas corpus.

We conclude that petitioner filed an unauthorized and impermissible second and

successive habeas petition, and we dismiss the appeal.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
                                           I.

      Petitioner is an Oklahoma state prisoner convicted of murder in 1997. He

filed a § 2254 habeas petition in 2000. The district court denied the petition in

2003, and granted a certificate of appealability on one claim: whether petitioner

was denied constitutionally effective assistance of counsel. On appeal, a panel of

this court affirmed the denial of habeas relief on the basis that petitioner, through

his appointed counsel, had failed to include in the record on appeal the state trial

transcripts and other documents referenced in the appellate briefs. Gray v.

Addison, 119 F. App’x 202, 203-04 (10th Cir. 2004) (unpublished), cert. denied,

126 S. Ct. 239 (2005). Without these records, this court could not evaluate the

parties’ characterization of the trial evidence, determine whether the jury was

deprived of material evidence due to trial counsel’s deficient performance, or

meaningfully review the district court’s ruling. Id. at 203. The panel noted it was

not obligated to remedy petitioner’s failure to designate an adequate record. Id. at

204 (citing 10th Cir. R. 10.3(B)).

      Petitioner requested panel rehearing and leave to supplement the record

with the missing state court records. Counsel for petitioner explained that she

had mistakenly believed that the district court would transmit the entire record

before the district court, including the state records, but had not verified this

assumption with the court clerk. The panel denied rehearing, noting it was not


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permitted under Federal Rule of Appellate Procedure 40 to grant rehearing based

on attorney neglect, and that 28 U.S.C. § 2254(i) prohibits habeas relief based on

ineffective counsel in state or federal collateral post-conviction proceedings.

Gray v. Addison, No. 03-6270, Order dated Jan. 4, 2005. Petitioner sought

rehearing en banc, which this court denied.

      Petitioner then filed a motion in district court pursuant to Rule 60(b)(6) of

the Federal Rules of Civil Procedure requesting that court to vacate and reissue its

original order so that he could pursue his appeal on the merits. The district court

granted the Rule 60(b)(6) motion; vacated its original 2003 order denying habeas

relief; issued a new, verbatim order denying habeas relief; and granted petitioner

a certificate of appealability. We conclude that petitioner’s Rule 60(b) motion

was an improper attempt to file a second and successive habeas petition, and that

the district court did not have jurisdiction to grant the motion or to reach the

merits of petitioner’s claims.

                                          II.

      The Antiterrorism and Effective Death Penalty Act of 1996 imposed

restrictions on the filing of a second or successive § 2254 habeas petition. As

relevant here, any claim presented in a successive petition that has already been

adjudicated in a previous petition must be dismissed. 28 U.S.C. § 2244(b)(1).

Furthermore, a second or successive habeas petition cannot be filed in district


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court unless the petitioner first obtains an order from the appropriate court of

appeals authorizing the district court to consider the application. 28 U.S.C.

§ 2244(b)(3)(A).

      In 1998, this court ruled that a Rule 60(b) motion seeking to vacate a prior

judgment denying a § 2254 habeas petition was to be treated categorically as a

second and successive habeas petition, subject to the preauthorization requirement

of § 2244(b)(3). Lopez v. Douglas, 141 F.3d 974, 975-76 (10th Cir. 1998).

Recently, however, in Gonzalez v. Crosby, 125 S. Ct. 2641 (2005), the Supreme

Court rejected such a categorical treatment of Rule 60(b) motions in habeas

proceedings. The Court held that:

      [A] Rule 60(b)(6) motion in a § 2254 case is not to be treated as a
      successive habeas petition if it does not assert, or reassert, claims of
      error in the movant’s state conviction. A motion that . . . challenges
      only the District Court’s failure to reach the merits does not warrant
      such treatment, and can therefore be ruled upon by the District Court
      without precertification by the Court of Appeals pursuant to
      § 2244(b)(3).

Id. at 2651 (emphasis added).

      Petitioner contends that his Rule 60(b) motion is not an unauthorized

successive habeas petition because he is not raising any new claims, but is only

raising the identical claims and arguments presented in the original appeal. He

asserts the quotation from Gonzalez supports his argument that his Rule 60(b)

motion is not a successive petition, because he is not attempting to amend,


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reargue, or supplement his original claims. We disagree. Although petitioner is

not raising any new issues or arguments, he is unequivocally reasserting his

substantive claim of error as to his state conviction. See id.

         Whether a Rule 60(b) motion may be filed without preauthorization in a

habeas proceeding depends on the nature of the relief sought. Id. at 2648.

Gonzalez holds that a proper 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.” Id. Thus, the Rule 60(b) motion in Gonzalez

could proceed without preauthorization because it challenged a procedural ruling

by the district court that precluded a merits analysis of the habeas claims by that

court.

         On the other hand, Gonzalez holds that a Rule 60(b) motion in a § 2254

case must be treated as a successive habeas petition if it asserts or reasserts a

substantive claim to set aside the petitioner’s state conviction. Id. at 2648, 2651.

The Rule 60(b) motion at issue in this case clearly falls into this category. The

federal district court in this case did rule on the merits of petitioner’s habeas

claims, and petitioner’s Rule 60(b) motion unquestionably reasserts the same

substantive ineffective assistance of counsel claim that he asserted in his § 2254

petition.




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      Petitioner argues that he properly invoked Rule 60(b) to avoid a

fundamental miscarriage of justice so that his appeal could be heard on the merits,

not be dismissed because of his counsel’s failure to transmit the necessary record

on appeal. In essence, petitioner is arguing that his Rule 60(b) motion merely

attacks a procedural “defect in the integrity of the federal habeas proceedings.”

Gonzalez, 125 S.Ct. at 2648. Gonzalez itself forecloses this argument, however,

holding that “an attack based on . . . habeas counsel’s omissions ordinarily does

not go to the integrity of the proceedings, but in effect asks for a second chance to

have the merits determined favorably.” Id. at 2648 n.5 (citation omitted).

Moreover, the proper means for petitioner to challenge this court’s procedural

ruling was to seek Supreme Court review (and here, the Supreme Court denied

certiorari), not to seek a “do-over” in the district court. See Servants of Paraclete

v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (holding that Rule 60(b) motions

“are inappropriate vehicles to reargue an issue previously addressed by the

court.”).

      Petitioner’s Rule 60(b) motion was a second, successive habeas petition, but

petitioner failed to obtain authorization from this court before filing his motion.

We must, therefore, vacate the district court’s order granting Rule 60(b) relief

because it did not have jurisdiction to decide the unauthorized successive habeas




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petition. 1 See Lopez, 141 F.3d at 975-76. We construe the notice of appeal and

appellate brief in this case as “an implied application under 28 U.S.C.

§ 2244(b)(3)(A) for leave to file a second habeas petition in the district court.”

Lopez, 141 F.3d at 976. Leave is prohibited in this case, however, by

§ 2244(b)(1), which mandates dismissal of any claim presented in a second or

successive § 2254 habeas application that was presented in a prior application.

      Accordingly, the district court’s order dated June 6, 2005, granting

petitioner’s Rule 60(b) motion, is VACATED; petitioner’s implied application

for leave to file a second or successive § 2254 petition is DENIED; and this appeal

is DISMISSED.


                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




1
       The district court deemed the Rule 60(b) motion confessed under its local
rules because the respondent did not file any objection. A district court does not
have jurisdiction to address the merits of a second or successive petition unless
this court has granted the required prior authorization under § 2244(b)(3)(A),
Lopez, 141 F.3d at 975-76, and parties cannot – by agreement, consent, estoppel,
or waiver – confer jurisdiction on a federal court which has not been granted
by the Constitution and Congress. Ins. Corp. of Ireland, Ltd. v. Compagnie
des Bauxites de Guinee, 456 U.S. 694, 702 (1982); Henry v. Office of Thrift
Supervision, 43 F.3d 507, 511 (10th Cir. 1994).

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