                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        May 23, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

v.                                                        No. 12-5216
                                             (D.C. Nos. 4:12-CV-00321-CVE-FHM
JOHN ELDRIDGE CONE,                               and 4:05-CR-00022-CVE-3)
a/k/a Cowboy,                                             (N.D. Okla.)

              Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


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



      John Eldridge Cone, a federal prisoner proceeding pro se, seeks to appeal the

district court’s dismissal of his pleading entitled “Motion to Vacate Judgment

Obtained Through Fraud Upon the Court Pursuant to Fed. R. Civ. P. 60(d)(3),” which

the district court construed as an unauthorized second or successive motion under

28 U.S.C. § 2255. We deny a certificate of appealability (COA) and dismiss this

proceeding.



*
       This order is not binding precedent except under the doctrines of law of the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.
                                                                          FILED
                                                             United States Court of Appeals
                                                                       Tenth Circuit
      After unsuccessfully moving to suppress evidence discovered at his house

pursuant to a search warrant, Mr. Cone pled guilty in 2006 to federal drug and23, 2013
                                                                        May

                                                                      Elisabeth A. Shumaker
firearms offenses. In his plea agreement, he waived his right to pursue aClerk of Court
                                                                          direct

appeal or to collaterally attack his conviction or sentence except in very limited

circumstances. Accordingly, he did not file an appeal.

      In June 2012, however, Mr. Cone filed a § 2255 motion arguing that all the

evidence against him arising out of the search of his house should have been

suppressed because the affidavit used to secure the search warrant contained false

and misleading statements and omitted material facts. The search warrant was issued

by a magistrate judge in state court based on an affidavit provided by Officer First, a

Tulsa police officer. The affidavit reported information obtained by Tulsa police

officers in two traffic stops of third parties who possessed drugs allegedly sold by

Mr. Cone. The search of Mr. Cone’s house uncovered both drugs and stolen firearms

and led to charges in both state and federal court.

      In his § 2255 motion, Mr. Cone noted that some of the Tulsa police officers

who were involved in the traffic stops or in the search of his house had since been

indicted or disciplined for a variety of misconduct, including tampering with

evidence and falsifying affidavits for search warrants.1 In its request for an extension

of time to respond, the government noted that Mr. Cone had waived his right to file a

§ 2255 motion in his plea agreement. Before the government filed its response,
1
      Officer First was not one of those accused of misconduct.


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Mr. Cone moved to amend his § 2255 motion to convert it into a “Motion to

Withdraw and Nullify Guilty Plea Pursuant to Rule Fed. R. Civ. P. 60(d)(3).” R. at

157.

       Mr. Cone acknowledged in his motion to amend that he had waived his right to

file a § 2255 motion and that his waiver was knowing and voluntary. He said that he

had filed his § 2255 motion based on newly discovered evidence of fabricated

evidence and perjured testimony relating to the search warrant, however, and he

believed that the court could not enforce the waiver if it would lead to a miscarriage

of justice. Mr. Cone claimed that if he had had proof of the corruption of the officers

involved, he would not have pled guilty. He argued that the court had inherent

equitable power to vacate the judgment because it was obtained through fraud on the

court, and he contended that he could assert an independent, non-habeas claim for

fraud on the court under Fed. R. Civ. P. 60(d)(3).

       The district court denied relief. It held that Mr. Cone’s § 2255 motion was

within the scope of the waiver in his plea agreement and that the waiver should be

enforced. It also held that, even if he had not waived his right to file a § 2255

motion, the motion would fail on the merits. Among other things, the court

concluded, the § 2255 motion asserted the same claims Mr. Cone had raised in his

suppression motion, and it did not rely on newly discovered evidence. The court

further held that Fed. R. Civ. P. 60(d) did not provide any basis for relief because it

does not apply to criminal proceedings and is not an independent source of


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jurisdiction in a criminal case. The court concluded that § 2255 provided the

exclusive remedy for Mr. Cone to test the validity of his conviction and sentence, and

it therefore denied his request for relief under Rule 60(d)(3). Mr. Cone did not

appeal the district court’s ruling.

       Soon thereafter, however, he filed a Motion to Vacate Judgment Obtained

Through Fraud Upon the Court Pursuant to Fed. R Civ. P. 60(d)(3), which is the

subject of this proceeding. Mr. Cone detailed the allegedly false or misleading

information and material omissions in the affidavit supporting the search warrant, as

well as the evidence supporting his contentions. He argued that the evidence showed

that Officer First committed fraud on the state court when he secured the search

warrant and that “this harmed the integrity of the process severely.” R. at 129.

Mr. Cone asked the district court to use its powers under Rule 60(d)(3) to vacate his

judgment of conviction. The district court concluded that the motion was in

substance a second or successive § 2255 motion, and that the court had no

jurisdiction to entertain it absent prior authorization from this court. The district

court therefore dismissed the motion for lack of jurisdiction.

       Mr. Cone must obtain a COA to appeal the dismissal. See United States v.

Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling

rested on procedural grounds, Mr. Cone must show both “that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the


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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). He fails to make the latter showing.

       Although Mr. Cone captioned his motion as one for fraud on the court under

Rule 60(d)(3), “[it] is the relief sought, not his pleading’s title, that determines

whether the pleading is a § 2255 motion.” United States v. Nelson, 465 F.3d 1145,

1149 (10th Cir. 2006). As the district court noted, Mr. Cone’s motion did not raise a

defect in the § 2255 proceedings themselves, but rather attacked the validity of his

underlying conviction. The district court was therefore correct in construing it as a

§ 2255 motion. See Berryhill v. Evans, 466 F.3d 934, 937-38 (10th Cir. 2006). And

because the § 2255 motion was a second or successive one, Mr. Cone had to obtain

prior approval from this court before filing it in the district court. See 28 U.S.C.

§§ 2244(b)(3), 2255(h). In the absence of that approval, the district court did not

have jurisdiction to entertain the motion and properly dismissed it. See In re Cline,

531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). Jurists of reason would not find

that ruling debatable.

       The application for COA is therefore denied and this matter is dismissed.

                                                 Entered for the Court



                                                 ELISABETH A. SHUMAKER, Clerk




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