                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   July 23, 2013
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                       No. 13-6106
       v.                                       (D.C. No. 5:98-CR-00183-R-1)
 WILLIAM GENE EATON,                                   (W.D. Oklahoma)

              Defendant - Appellant.


                                       ORDER


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Defendant William Gene Eaton appeals the district court’s order denying

his motion under Fed. R. Civ. P. 60(b). Because his motion must be treated as a

successive motion for habeas relief under 28 U.S.C. § 2255, we vacate the district

court’s order for lack of subject-matter jurisdiction, construe Defendant’s notice

of appeal and appellate brief as an application for authorization to file a

successive § 2255 motion, and deny authorization.

I.    BACKGROUND

      On March 24, 1999, Defendant was sentenced to life imprisonment by the

United States District Court for the Western District of Oklahoma after being

convicted of bank robberies and related crimes. The convictions and sentence

were affirmed on appeal. Defendant filed his first 28 U.S.C. § 2255 motion in
July 2000, arguing that his counsel was ineffective for various reasons, including

that he failed to seek dismissal of the charges on the ground that the indictment

was untimely filed. The district court denied that motion, ruling, among other

things, that the indictment was timely. This court denied a certificate of

appealability. In March 2005 Defendant filed his second § 2255 motion, which

the district court treated as an application for authorization to file a second or

successive § 2255 motion and transferred to this court. We denied authorization.

Since then, Defendant has filed numerous motions in district court seeking

postconviction relief, none of which has been successful in district court or this

court.

         This appeal concerns Defendant’s April 8, 2013, motion under Fed. R. Civ.

P. 60(b). The motion argues that the district court lacked subject-matter

jurisdiction to convict him because he was untimely indicted. The district court

denied the motion because it merely reiterated a prior Rule 60(b) motion that had

been denied.

II.      DISCUSSION

         Under the Antiterrorism and Effective Death Penalty Act of 1996, a

prisoner cannot file a “second or successive” motion under § 2255 unless it is

“certified . . . by a panel of the appropriate court of appeals to contain—(1) newly

discovered evidence . . . or (2) a new rule of constitutional law, made retroactive




                                          -2-
to cases on collateral review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255(h).

      The Supreme Court has explained that a Rule 60(b) motion should be

construed as a successive habeas petition if it (1) “seeks to add a new ground for

relief,” or (2) “attacks the federal court’s previous resolution of a [habeas] claim

on the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). But a Rule 60(b)

motion is not a successive petition if it attacks “some defect in the integrity of the

federal habeas proceedings.” Id. Although Gonzalez dealt with § 2254

applications for relief, we have applied its analysis to § 2255 motions. See

United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006).

      Because Defendant proceeded pro se, we construe his motion liberally. See

id. at 1148. The motion does not challenge the integrity of the habeas

proceeding. Rather, it attacks the district court’s prior resolution of a habeas

claim on the merits. It therefore constitutes a successive § 2255 motion and the

district court lacked jurisdiction to consider it. See id. at 1149. Accordingly, we

vacate the order below. See id.

      We may, however, treat Defendant’s notice of appeal and appellate brief as

an application to file a successive § 2255 motion. See id. But because he has

alleged neither newly discovered evidence nor a new rule of law that applies

retroactively, we deny the application.




                                          -3-
III.   CONCLUSION

       We VACATE the district court’s order for lack of jurisdiction. We DENY

Defendant’s application for authorization to file a successive § 2255 motion and

his motion to amend.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




                                       -4-
