                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                          _______________________

                                No. 99-21048
                          _______________________


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                   versus

ZACHARY MALVEAUX,

                                                       Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (H-98-CV-2519)
_________________________________________________________________
                           June 15, 2000

Before JONES, and BENAVIDES, Circuit Judges and COBB*, District
Judge.

PER CURIAM:**

           Petitioner Malveaux appeals the magistrate judge’s denial

of a Rule 60(b) motion he filed nine months after his § 2255

petition was denied.      This court has held that Rule 60(b) motions

in   federal    habeas   cases   may   be   treated   as    successive   habeas


      *
       District Judge of the Eastern District of Texas, sitting by
designation.
      **
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
petitions.    United States v. Rich, 141 F.3d 550 (5th Cir. 1998).

Because of the unique circumstances surrounding this case, we

believe it is appropriate to treat Malveaux’s motion as if it were

a successive habeas petition. As such, the magistrate judge should

have dismissed the motion because Malveaux failed to secure leave

of this court to file a successive § 2255 motion, as required by

statute.   See United States v. Rich, 141 F.3d at 553.

           Nevertheless,       if    we    treat      Malveaux’s    motion     as   an

application   to    this    court    for       certification   of    a   successive

petition, § 2255 severely limits such certification to motions

involving:

           (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 fact finder 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.      Malveaux’s motion is not based on either of

these grounds, but merely re-argues the issues he raised in his

§ 2255 motion and asserts conclusionally that he was prejudiced

because he did not receive a copy of the government’s motion for

summary judgment and was accordingly denied an opportunity to

respond.   The magistrate judge’s opinion thoroughly reviewed each

of   Malveaux’s    claims    and    found      them   meritless     in   a   ten-page

memorandum opinion.         Moreover, Malveaux’s brief does not explain

how he was prejudiced by his failure to respond and it identifies

                                           2
no arguments he would have raised in opposition to the summary

judgment motion. Not only does Malveaux’s argument fail to satisfy

the   standards   for   Rule   60(b)   relief   if   that   provision   were

available, but the criteria for Malveaux’s proceeding with this

motion when treated as a successive habeas petition are simply

unfulfilled.

           Motion for successive habeas relief DENIED.




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