                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         March 28, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Respondent-Appellee,                       No. 06-4242
          v.                                              (D. of Utah)
 D A N IEL L. C AR D,                             (D.C. No. 06-CV-529-TC)

               Petitioner-A ppellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **


      This matter stems from a pro se appeal by Daniel L. Card of a district court

order denying his motion seeking relief from the operation of a judgment under

Federal Rule of Civil Procedure Rule 60(b)(6). Because the motion must be

treated as a successive motion of relief under 28 U.S.C. § 2255, we vacate the

district court’s order for lack of subject-matter jurisdiction, construe Card’s




      *
         This order and judgment is not binding precedent except under the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.
notice of appeal and appellate brief as an implied application for authorization to

file another § 2255, and deny authorization.

                                  I. Background

      In 1997, Daniel L. Card was convicted for possessing an unregistered

firearm in violation of 26 U.S.C. §§ 5861(d) and 5871, and for being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was sentenced

to 87 months imprisonment and three years of supervised release. This court

upheld Card’s conviction and sentence on direct appeal. See United States v.

Card, 162 F.3d 1174 (10th Cir. 1998).

      In 1999, Card filed his first motion to set aside his sentence pursuant to 28

U.S.C. § 2255, which the district court promptly denied. On appeal, we denied

Card a certificate of appealability (COA) and dismissed his case. See United

States v. Card, 242 F.3d 391 (10th Cir. 2000). In 2003, he filed a motion for

authorization to file another § 2255 petition claiming that the shotgun used in his

trial was obtained as a result of an illegal search of his home. The motion was

denied for failing to satisfy the stringent Antiterrorism and Effective Death

Penalty Act standards for second or successive petitions in § 2255. See United

States v. Card, No. 03-4281 (10th Cir. Jan. 29, 2004).




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      On June 30, 2006, Card filed a motion for relief from his direct and habeas

appeals pursuant to Rule 60(b)(6) in the district court. 1 In his motion, Card

alleges that his convictions were premised on an illegal search and fraudulent

misrepresentations by the prosecution. On July 17, 2005, the court, by letter,

asked Card if his motion might more appropriately be brought under § 2255 and

asked him if the court should convert the motion to a § 2255 motion to vacate.




      1
         In 2000, Card was separately convicted of two counts of armed credit
union robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and two counts of
using or carrying a sawed-off shotgun during the robberies in violation of 18
U.S.C. § 924(c)(1). He was sentenced to 406 months in prison and five years of
supervised release. W hile Card inadvertently (w e assume) included documents
from his 2000 conviction in his motion papers before the district court, based on
his allegations we construe this Rule 60(b) motion to only encompass his 1997
convictions.

       Since the sentence on the 2000 convictions runs concurrently with the 1997
sentence, it is unclear whether Card remains incarcerated on his 1997 sentence,
raising mootness concerns. Nevertheless, our jurisdiction is unaffected because
he is yet to serve his supervised release sentence. See Oyler v. Allenbrand, 23
F.3d 292, 293–94 (10th Cir. 1994) (a habeas appeal is not moot if a petitioner
faces possible collateral consequences from the conviction); United States v.
Castro-Rocha, 323 F.3d 846, 847 n.1 (10th Cir. 2003) (“[A ] defendant’s
unexpired term of supervised release, which could be reduced by a favorable
appellate decision, is sufficient to defeat a claim of mootness.”).

      Furthermore, in Card’s motion, he asks for relief from the operation of the
judgm ent of his “appeals, from his direct to his 2241.” First, the record shows
that Card initially filed a § 2255 petition, not a § 2241 petition. Second, to the
extent Card wishes this Rule 60(b) motion to reach his underlying firearms
convictions, we hold that it does not. A party’s appeal from the denial of a Rule
60(b) motion “raises for review only the district court’s order of denial and not
the underlying judgment itself.” Van Skiver v. United States, 952 F.2d 1241,
1243 (10th Cir. 1991).

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      The court advised Card that “if you wish for [the court] to treat your

motion as a § 2255 motion, a second motion could be treated as a ‘successive

motion’ and subject to review by the Tenth Circuit Court of Appeals.” Second or

successive petitions for habeas relief are subject to standards articulated in 28

U.S.C. § 2244(b). Card responded to the district court stating that he did not want

his motion converted to a § 2255 petition. On August 1, 2006, the district court

denied C ard’s Rule 60(b)(6) motion “[b]ecause the only relief to w hich M r. Card

is entitled can be found under § 2255.”

      Card filed a notice of appeal on September 29, 2006 arguing that the

district court misconstrued the statutory language of Rule 60(b). W e now

consider his appeal and vacate the district court’s order. For the reasons set forth

below, we construe Card’s appeal as a request for authorization to file a

successive § 2255 petition and deny authorization.

                                    II. Analysis

      W e recently set out the substantive and procedural rules that federal district

and appellate courts must follow when ruling on a Rule 60(b) motion challenging

the denial of a § 2254 or § 2255 petition. Spitznas v. Boone, 464 F.3d 1213,

1215–19 (10th Cir. 2006). This articulation was in response to the Supreme

Court’s decision in Gonzalez v. Crosby, 545 U.S. 524 (2005), which altered our

circuit rule to treat all Rule 60(b) motions in habeas proceedings as a second or

successive habeas petition for purposes of § 2244. Cf. Lopez v. Douglas, 141

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F.3d 974 (10th Cir. 1998). In Gonzalez, the Supreme Court distinguished

between “true” Rule 60(b) motions that do not need to meet the stringent

standards of § 2244 and motions that are actually a second or successive habeas

petition requiring adherence to § 2244. Gonzalez, 545 U.S. at 532–33.

      W e now apply the Spitznas framew ork to Card’s motion.

      A.     Successive Petition or True Rule 60(b) motion

      According to Spitznas, the first step for the district court is to “determine

. . . whether the motion is a true Rule 60(b) motion or a second or successive

petition.” 464 F.3d at 1216. A motion is a “true Rule 60(b)” if it (1) challenges a

procedural ruling of the habeas court which precluded a merits determination of

the habeas application, or (2) challenges a defect in the integrity of the federal

habeas proceeding. Id. at 1215–16. A Rule 60(b) motion is a second or

successive petition if it “in substance or effect asserts or reasserts a federal basis

for relief from the petitioner’s underlying conviction.” Id. at 1215. The district

court did not make an explicit ruling on this issue.

       Notwithstanding the lack of an express finding, we believe the district

court could not avoid concluding that Card’s motion was a successive habeas

claim. Card asserts fraudulent behavior by prosecutors and law enforcement

officials in concealing an illegal search of his home during his underlying federal

conviction. As Spitznas dictates, a motion alleging “fraud on . . . the federal

district court that convicted and/or sentenced the movant in the case of a § 2255

                                          -5-
motion . . . will ordinarily be considered a second or successive petition because

any ruling would inextricably challenge the underlying conviction proceeding.”

464 F.3d at 1216. This conclusion is consistent with the district court’s warning

to Card in its July 17, 2006 letter that the motion could be treated as a

“‘successive motion’ and subject to review by the Tenth Circuit Court of

Appeals.”

      B.     Transfer of M otion

      Spitznas also holds that the district court should either (1) rule on the

petitioner’s motion as any other Rule 60(b) motion if it is a true Rule 60(b)

motion, or (2) transfer the matter to this court for authorization under

§ 2244(b)(3) if it is actually a second or successive petition. 464 F.3d at 1217.

The district court failed to do either. Instead, in the August 1, 2006 order, the

district court summarily denied Card’s motion “[b]ecause the only relief to which

M r. Card is entitled can be found under § 2255.”

      W hile the district court properly invited Card to convert his motion to a

successive § 2255 motion, it was without jurisdiction to deny the motion when he

declined the invitation. Since the motion’s true nature was a second or successive

habeas petition, the district court has no jurisdiction over the matter, 28 U.S.C.

§ 2244(b)(3)(B). The district court therefore should have transferred the action to

this court under 28 U.S.C. § 1631, authorizing the transfer of civil action or

appeal filed without jurisdiction, in the interest of justice, “to any other court in

                                          -6-
which the action or appeal could have been brought at the time it was filed or

noticed.” Such a rule is not new to the circuit. See Coleman v. United States,

106 F.3d 339, 341 (10th Cir. 1997) (“[W]hen a second or successive petition for

habeas corpus relief under § 2254 or § 2255 motion is filed in the district court

without the required authorization by this court, the district court should transfer

the petition or motion to this court in the interest of justice pursuant to [28

U.S.C)] § 1631.”). 2

      C.     Appellate Review of District Court’s Disposition

      Spitznas next dictates our review of a district court’s disposition of a Rule

60(b) motion. If the district court correctly treats the motion as a true Rule 60(b)

motion and denies it, we w ill require a COA before proceeding with the m ovant’s

appeal. Spitznas, 464 F.3d at 1218. On the other hand, if the district court

construes the motion as a second or successive petition, we will not require a

COA to determine if the motion is in fact a second or successive petition or if the

matter w arrants authorization to file since there is technically nothing to appeal.

Id. W e retain ultimate responsibility for determining the true nature of a Rule




      2
           Since the rule in Coleman, which was re-articulated in Spitznas, only
states that district courts should transfer a Rule 60(b) motion to this court if it is
actually a second or successive petition, it is a hortatory rather than a compulsory
command and so impliedly the district court may also dismiss an improper Rule
60(b) motion for lack of jurisdiction. See Spitznas, 464 F.3d at 1227. W e do not
read the district court’s order as disavowing its jurisdiction.

                                           -7-
60(b) motion if the motion’s characterization “is uncertain, in dispute by the

petitioner, or if we disagree with the district court’s determination.” Id. at 1219.

       Here, the district court likely recognized the motion as a successive

petition, but failed to transfer the matter to this court. Spitznas counsels, “If the

district court has incorrectly treated a second or successive petition as a true Rule

60(b) motion and denied it on the merits, we will vacate the district court’s order

for lack of jurisdiction and construe the petitioner’s appeal as an application to

file a second or successive petition.” Id.

       W hile the district court did not treat the second or successive petition as a

true Rule 60(b) motion, as we stated above, the district court should have

forwarded the motion to this court as an application for authorization to file a

second or successive petition or at the very least dismissed the motion for lack of

jurisdiction. Accordingly, we vacate for lack of jurisdiction the district court’s

order denying Card’s R ule 60(b) motion and treat Card’s appeal and appellate

brief as an implied application to file a second or successive petition. See Pease

v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (construing a notice of appeal and

appellate brief as an implied application for leave to file a successive § 2254

petition). 3



       3
        In Spitznas, we similarly faced a district court’s summary denial of a
Rule 60(b) motion which contained a second or successive habeas claim. W e
construed the movant’s appeal as an application to file a successive petition.
Spitznas, 464 F.3d at 1226.

                                           -8-
      D.     Request for Successive § 2255 Application

      W e now turn to Card’s § 2255 application and deny the request for

authorization to file a second or successive application. Under 28 U.S.C. §§

2244(b)(1) and 2255, a “claim presented in a second or successive habeas corpus

application . . . that was presented in a prior application shall be dismissed.” In

November 2003, Card filed his second § 2255 petition. In that motion, Card

asserted the shotgun that served as the basis of his convictions was obtained as a

result of an illegal search of his home because a Utah police officer, who testified

for the prosecution, failed to secure a second search warrant. He claimed that the

officer’s trial testimony gave a false impression to the court that the information

about the shotgun came from a legal search. W e denied Card authorization for

failure to conform with §§ 2244 and 2255’s criteria for a second habeas petition.

      In his current Rule 60(b) motion, Card argues the same points. He again

alleges that Utah police failed to obtain a second search warrant and that the

shotgun was obtained through an illegal search. He accuses the government of

fraud by letting the conviction stand knowing that evidence was obtained

illegally. The claims in Card’s second and now third § 2255 petition are

indistinguishable and we therefore deny Card authorization to file a successive

claim concerning the alleged fraud in his underlying federal conviction.




                                         -9-
                                  III. Conclusion

      Because Card’s Rule 60(b) motion is truly a successive motion for relief

under 28 U.S.C. § 2255, we VACATE the district court’s order for lack of

jurisdiction, read Card’s appeal as an implied application for authorization to file

another § 2255, and DENY authorization for a COA.



                                               Entered for the Court,


                                               Timothy M . Tymkovich
                                               Circuit Judge




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