                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-7176


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ELSA G. MONTECINOS,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of South Carolina, at
Columbia. Cameron McGowan Currie, Senior District Judge. (3:08-cr-00590-CMC-17;
3:12-cv-01978-CMC)


Submitted: January 30, 2018                                  Decided: February 14, 2018


Before DIAZ and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Elsa G. Montecinos, Appellant Pro Se. Jimmie Ewing, Stanley D. Ragsdale, Julius Ness
Richardson, John David Rowell, Assistant United States Attorneys, James Chris
Leventis, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Elsa G. Montecinos appeals the district court’s order construing her Fed. R. Civ. P.

60(b)(6) motion as an unauthorized, successive 28 U.S.C. § 2255 (2012) motion and

dismissing for lack of jurisdiction.

       We review the district court’s judgment de novo, and a certificate of appealability

is not required.   United States v. McRae, 793 F.3d 392, 397, 400 (4th Cir. 2015).

Although a prisoner is permitted to seek Rule 60(b) relief from the district court’s

judgment on a § 2255 motion, “a district court has no discretion to rule on a Rule 60(b)

motion that is functionally equivalent to a successive” § 2255 motion. United States v.

Winestock, 340 F.3d 200, 206 (4th Cir. 2003).          “[A] motion directly attacking the

prisoner’s conviction or sentence will usually amount to a successive application.” Id. at

207.   “Thus, a brand-new, free-standing allegation of constitutional error in the

underlying criminal judgment will virtually always implicate the rules governing

successive applications,” and “new legal arguments or proffers of additional evidence

will usually signify that the prisoner is not seeking relief available under Rule 60(b) but is

instead continuing his collateral attack on his conviction or sentence.” Id. By contrast,

“[a] Rule 60(b) motion that challenges some defect in the integrity of the federal habeas

proceedings . . . is a true Rule 60(b) motion, and is not subject to the preauthorization

requirement.” McRae, 793 F.3d at 397 (internal quotation marks omitted).

       Montecinos asserted in her Rule 60(b) motion that the district court erred by not

considering her claim that counsel rendered ineffective assistance by failing to move to

suppress evidence based on the placement of a GPS tracker on her vehicle. The issue is

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whether that claim constitutes a challenge to a defect in the integrity of the federal habeas

proceeding or is actually a veiled attempt to raise a new argument based on United States

v. Jones, 565 U.S. 400 (2012) (holding that attachment of GPS tracking device to vehicle

and use of device to track vehicle’s movements constitutes search within meaning of

Fourth Amendment).

       If a Rule 60(b) movant argues that the district court erred by failing to consider a

claim she raised in her federal habeas petition and the movant actually raised that claim

in her petition, then the motion is a true Rule 60(b) motion. Spitznas v. Boone, 464 F.3d

1213, 1224 (10th Cir. 2006). If, however, a Rule 60(b) movant argues that the district

court erred by failing to consider a claim she raised in her federal habeas petition and the

movant did not actually raise that claim in her petition, then the motion qualifies as a

successive federal habeas petition, for which the movant must seek prefiling

authorization. Id. at 1226.

       We conclude that Montecinos’ claim in her Rule 60(b)(6) motion falls into the

latter category—she did not argue in her original § 2255 motion that counsel rendered

ineffective assistance by failing to move to suppress evidence based on the placement of

a GPS tracker on her vehicle. Because Montecinos’ claim based on Jones was not

presented in her original § 2255 motion, the district court correctly concluded that her

Rule 60(b)(6) motion is, in substance, an unauthorized, successive § 2255 motion.

       When a district court construes a Rule 60(b) motion as a successive § 2255

motion, we treat the notice of appeal and informal appellate brief as an application for

authorization to file a second or successive § 2255 motion. Winestock, 340 F.3d at 208.

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To obtain authorization to file a successive § 2255 motion, a prisoner must assert claims

based on either:

       (1) newly discovered evidence that . . . 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). Montecinos’ claim does not satisfy either of these criteria. We

therefore deny authorization to file a successive § 2255 motion.

       We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                              AFFIRMED




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