                                                                          FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 27, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                 Nos. 08-7045 and 08-7047
 v.                                                     (E.D. of Okla.)
 LON PERRY EDGE,                                 (D.C. No. CR-05-86-RAW)

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Lon Perry Edge, a federal prisoner proceeding pro se, 1 appeals the district

court’s denial of his two Federal Rule of Civil Procedure 60(b) motions and his

Federal Rule of Criminal Procedure 6(e) motion. All three of these motions were

filed after he was tried and convicted on three firearms and ammunition charges,


      *
         This order and judgment is not binding precedent except under the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.
      **
         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.
      1
        Because Edge proceeds pro se, we construe his pleadings liberally.
United States v. Warner, 23 F.3d 287, 290 (10th Cir. 1994).
and after his conviction was affirmed by this court on direct appeal. United

States v. Edge, 238 F. App’x 366 (10th Cir. June 27, 2007). In his two Rule 60(b)

motions, Edge challenged the validity of his conviction on various grounds,

including claims that (1) the government committed fraud in his criminal

proceeding, (2) his constitutional rights were violated, and (3) the government

withheld exculpatory evidence. We dismiss his appeal on these motions because

it is procedurally defective.

      In his Rule 6(e) motion, Edge sought access to the transcript of the grand

jury proceedings from his criminal case. He apparently claimed, among other

things, that he was subject to selective prosecution, certain witnesses perjured

themselves, and a fraud on the court was perpetrated by various government

officials. We agree with the district court in finding that his Rule 6(e) motion

lacked particularity and failed to overcome the presumption of secrecy afforded

grand jury proceedings.

      Having jurisdiction under 28 U.S.C. § 1291, we affirm.

                                  I. Background

      Detailed facts of Edge’s criminal case are set forth in our earlier opinion.

Edge, 238 F. App’x 366. We therefore only briefly summarize the pertinent

issues. In 2006, a jury convicted Edge of possession of a firearm while subject to

a domestic-relations protective order and one count of possession of ammunition




                                         -2-
while subject to the same protective order, all violations of 18 U.S.C.

§ 922(g)(8). 2 Id. at 367. He was sentenced to 44 months’ imprisonment. Id.

      Edge then appealed to this court, alleging insufficient evidence to support

his conviction and various sentencing errors. Id. at 367–68. Determining that

none of his claims had any merit, we affirmed both his conviction and the

sentence. Id. at 368–70.

      Subsequently, Edge filed three motions in district court. In two documents

he labeled “Motion for Relief from Judgment Pursuant to Federal Rule of Civil

Procedure 60(b),” Edge sought relief from his criminal conviction alleging,

among other things, that his constitutional rights were violated, that the

government withheld exculpatory evidence, that the government committed fraud

on the court, and that his conviction was “void.” R., Vol. I, Docs. 79, 80. The

district court recognized that Federal Rule of Civil Procedure 60(b) has no

application to a criminal proceeding, declined to construe these motions as a 28

U.S.C. § 2255 petition, and denied Edge’s two motions.

      In his third motion, Edge sought disclosure of testimony and evidence from

the grand jury proceeding in his criminal case. The district court, however, could

not decipher his motion. Although it appeared Edge was claiming some sort of


      2
        Prior to his trial in federal court, Edge was charged in state court on five
counts relating to the same weapons possession and various traffic violations.
Edge, 238 F. App’x at 368. He was acquitted on two charges and the state
dismissed the remaining three. Id.

                                         -3-
government misconduct, the district court noted that his supporting claims in the

motion were “nonsensical.” As a result, the district court denied the motion,

finding Edge had failed to show a particularized need for the materials and had

failed to demonstrate that the need for disclosure outweighed the public interest in

the material’s continued secrecy.

      Edge now appeals the district court’s denials of all three motions. 3

                                    II. Analysis

      As an initial matter, because our power to review any decision, “including

decisions involving a lower court’s subject matter jurisdiction,” depends on our

appellate jurisdiction, “the first and fundamental question is that of jurisdiction,

first, of this court, and then of the court from which the record comes.” In re

Lang, 414 F.3d 1191, 1195 (10th Cir. 2005) (quotations omitted). We have

jurisdiction over the district court’s denials of Edge’s Rule 60(b) motions because

the denials are separably appealable, independent of any judgment by the district

court. Id. at 1195–96; Stouffer v. Reynolds, 168 F.3d 1155, 1172 (10th Cir.

1999). But, as discussed below, it is clear the district court did not have

jurisdiction to consider Edge’s Rule 60(b) motions. Consequently, our review is

limited to the jurisdictional propriety of the district court’s order denying Rule

60(b) relief. See In re Lang, 414 F.3d at 1195–96; Stouffer, 168 F.3d at 1172.

      3
         Edge’s appeal of the district court’s denial of his two Rule 60(b) motions
is 10th Circuit Case No. 08-7045. His appeal of the denial of his Rule 6(e)
motion is 10th Circuit Case No. 08-7047.

                                          -4-
      We also have jurisdiction to hear Edge’s appeal of the district court’s

denial of his motion for disclosure of the grand jury materials under Rule 6(e)

because the district court’s order constitutes a final decision under 28 U.S.C.

§ 1291. In re Grand Jury 95-1, 118 F.3d 1433, 1436 (10th Cir. 1997).

      We address each of Edge’s appeals in turn.

      A. Edge’s Federal Rule of Civil Procedure 60(b) Motions

      Edge’s 60(b) motions raise several challenges to his 2006 conviction on

firearms and ammunition charges. In particular, he claims his constitutional

rights were violated, there was undisclosed exculpatory evidence, the government

committed fraud on the court, and his conviction is void. Although his motions

were apparently submitted as Federal Rule of Civil Procedure 60(b) motions for

relief from judgment, in reality, his arguments collaterally attack the disposition

of his federal criminal proceedings.

      The district court correctly determined that Rule 60(b) provides no basis for

Edge’s requested relief. First, and most importantly, Rule 60(b) does not apply to

a criminal proceeding. United States v. Spry, 260 F. App’x 52, 54 (10th Cir. Jan.

2, 2008); United States v. Ramirez, 211 F. App’x 712, 714 (10th Cir. Jan. 2,

2007); United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) (per

curiam) (“Rule 60(b) simply does not provide for relief from judgment in a

criminal case.”); United States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999)

(same). Nor is Rule 60(b) an independent source of jurisdiction in a criminal

                                         -5-
case. Ramirez, 211 F. App’x at 714; see also United States v. Johnson, 159 F.

App’x 835, 838–39 (10th Cir. Dec. 14, 2005) (“[W]hile Federal Rule of Civil

Procedure 60(b) has a ‘valid role to play in habeas cases,’ it does not provide

relief from judgment in a criminal case.” (quoting Gonzales v. Crosby, 545 U.S.

524, 533–34 (2005), and citing Mosavi, 138 F.3d at 1366)).

      Second, the district court properly refrained from recharacterizing Edge’s

motions as a 28 U.S.C. § 2255 petition. With pro se litigants, federal courts will

often ignore the labels attached to a pleading and “recharacterize the motion in

order to place it within a different legal category.” Castro v. United States, 540

U.S. 375, 381 (2003). However, with § 2255 motions, peculiar concerns are

implicated—namely, a court, by construing a litigants’s motion “as a first § 2255

motion . . . may make it significantly more difficult for that litigant to file another

such motion.” 4 Id. at 382. For this reason, the Supreme Court limited the lower

courts’ power to recharacterize various pleadings into a litigant’s first § 2255

motion. In particular, the Court observed that

      the district court must notify the pro se litigant that it intends to
      recharacterize the pleading, warn the litigant that this recharacterization
      means that any subsequent § 2255 motion will be subject to the
      restrictions on “second or successive” motions, and provide the litigant
      an opportunity to withdraw the motion or to amend it so that it contains
      all the § 2255 claims he believes he has. If the court fails to do so, the

      4
         Under the Antiterrorism and Effective Death Penalty Act of 1996,
successive § 2255 motions are substantively and procedurally disadvantaged.
E.g., § 2255(h) (limiting the grounds and availability of federal habeas relief on
second or successive § 2255 motions).

                                       -6-
      motion cannot be considered to have become a § 2255 motion for
      purposes of applying to later motions the law’s “second or successive”
      restrictions.

Id. at 383; see also United States v. Martin, 357 F.3d 1198, 1199 (10th Cir. 2004).

      Here, Edge specifically requested the district court notify him—pursuant to

Castro—if it intended to recharacterize his pleadings as his first § 2255 motion.

The district court obliged Edge’s request and refrained from any

recharacterization. 5 See United States v. Graham, 248 F. App’x 929, 931 (10th

Cir. Sept. 26, 2007) (stating recharacterization to a petition under § 2255 was

foreclosed by litigant’s “specific contrary request”). Having abstained from

construing his two purported Rule 60(b) motions as a federal habeas petition, the

district court properly recognized Federal Rule of Civil Procedure 60(b) has no

application to criminal proceedings.

      The district court, however, erred in denying his motions. Rather, the “only

appropriate course of action open to the district court was to dismiss” Edge’s

motions for lack of jurisdiction. Graham, 248 F. App’x at 931 (emphasis added).

Because the district court did not have jurisdiction to deny Edge’s Rule 60(b)

motions, we vacate the district court’s order denying these motions and direct the

district court to enter an order of dismissal.



      5
       The district court noted the two motions “overlap somewhat, but not
completely” and did not want to “attempt to decide which of the motions
Defendant may wish to have recharacterized.” R., Vol. I, Doc. 81 at 2.

                                          -7-
      B. Edge’s Federal Rule of Criminal Procedure 6(e) Motion

      Edge also filed a separate motion with the district court seeking to have the

contents of grand jury testimony from his 2006 criminal case disclosed. In

particular, Edge claims the grand jury testimony would shed light on his self-

defense arguments, and evince selective prosecution, perjury, and fraud on the

court perpetrated by various law enforcement and other officials.

      Having jurisdiction to hear this particular appeal, we review the district

court’s denial of Edge’s Rule 6(e) motion 6 for an abuse of discretion. In re Grand

Jury 95-1, 118 F.3d at 1437; In re Lynde, 922 F.2d 1448, 1451 (10th Cir. 1991)

(“[A] court called upon to determine whether grand jury transcripts should be

released necessarily is infused with substantial discretion.” (quoting Douglas Oil

Co. v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979))).

      Edge’s contentions are without merit. In relevant part, Rule 6(e)(3)(E)

provides:

             The court may authorize disclosure—at a time, in a manner, and
      subject to any other conditions that it directs—of a grand-jury matter:
      (I) preliminarily to or in connection with a judicial proceeding; [or] (ii)
      at the request of a defendant who shows that a ground may exist to
      dismiss the indictment because of a matter that occurred before the
      grand jury . . . .

      6
        Edge’s original motion before the district court was labeled as a “Motion
for Discovery under Fed. R. Crim. P. (e)(3)(I) & (ii)” and asked for disclosure of
the grand jury proceeding relating to his 2006 criminal case. R., Vol. I, Doc. 78.
Because no such Federal Rule of Criminal Procedure exists, the district court
properly construed the motion as one pursuant to Federal Rule of Criminal
Procedure 6(e)(3)(E)(I) and (ii).

                                      -8-
In In re Lynde, we recognized a presumption exists against disclosure of grand

jury testimony unless the moving party satisfies the Supreme Court’s Douglas Oil

test. In re Lynde, 922 F.2d at 1451–52. Under Douglas Oil, parties seeking

grand jury materials pursuant to Rule 6(e) must show a “particularized need” and

“that the material they seek is needed to avoid a possible injustice in another

judicial proceeding, that the need for disclosure is greater than the need for

continued secrecy, and that their request is structured to cover only material so

needed.” Id. (quoting Douglas Oil, 441 U.S. at 222).

      Edge presents neither a particularized need nor adequately overcomes the

presumption against disclosure of the grand jury materials. We agree with the

district court that Edge’s perfunctory motion failed to assert any comprehensible

arguments. The district court did not abuse its discretion in describing his motion

as “nonsensical.” R., Vol. I, Doc. 82 at 2. Although Edge’s motion below

contemplates some government wrongdoing, it is entirely unclear what relevance

the grand jury testimony from his criminal case has to any judicial proceeding and

how such evidence may assist him. 7




      7
         In his motion to the district court, Edge does state “Due to the Pending
Appeal, I also request it in a timely manner. Time left on Appeal is just over 60
days.” R., Vol. I, Doc. 78. We assume he was referencing the Rule 60(b)
motions he had filed earlier or perhaps a future timely § 2255 motion. However,
even when liberally construed, his motion lacked any particularity and was almost
entirely incomprehensible.

                                          -9-
       Therefore, the district court did not abuse its discretion by denying Edge’s

Federal Rule of Criminal Procedure 6(e)(3)(E) motion because Edge failed to

demonstrate (1) a particularized need for the materials, (2) the materials were

necessary to avoid injustice in another judicial proceeding, and (3) the need for

disclosure outweighed the public interest in the material’s continued secrecy. 8

See In re Lynde, 922 F.2d at 1451.

       For these reasons, we affirm the district court’s denial of Edge’s Rule 6(e)

motion.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s denial of Edge’s

Federal Rule of Criminal Procedure 6(e) motion, VACATE the district court’s

denial of Edge’s Federal Rule of Civil Procedure 60(b) motions, and REMAND for

entry of an order dismissing the Rule 60(b) motions for lack of jurisdiction. We




       8
         On appeal, Edge’s arguments are only marginally better. It appears as
though he contends he was selectively prosecuted, that certain witnesses
committed perjury, that government officials suborned and committed perjury,
and that certain exculpatory evidence was withheld. Nevertheless, we need not
reach his contentions on appeal. Edge makes no reference to any valid pending
judicial proceeding nor any contention he is gathering evidence for any future
judicial proceeding for which this grand jury testimony would be relevant.
Further, although he states, in conclusory fashion, the grand jury testimony would
reveal his allegations of misconduct, he fails to overcome the presumption against
disclosure.

                                        -10-
further DENY Edge’s motion to proceed in forma pauperis.



                                    Entered for the Court

                                    Timothy M. Tymkovich
                                    Circuit Judge




                                     -11-
