                             NOT FOR FULL-TEXT PUBLICATION
                                   File Name: 13a0357n.06
                                                                                          FILED
                                            No. 12-4401                                Apr 10, 2013
                                                                                 DEBORAH S. HUNT, Clerk

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                      )
In re: DON NELL HAWKINS,                              )      ON APPEAL FROM THE
                                                      )      UNITED STATES DISTRICT
        Movant.                                       )      COURT FOR THE NORTHERN
                                                      )      DISTRICT OF OHIO
                                                      )
                                                      )


        Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*


        PER CURIAM.         Don Nell Hawkins, a pro se federal prisoner, seeks this Court’s

authorization to file a second or successive 28 U.S.C. § 2255 motion to vacate his sentence.

        In 2007, Hawkins pleaded guilty to two counts of distributing cocaine base and one count of

possession with the intent to distribute cocaine base. He was sentenced to 240 months of

imprisonment. This Court affirmed his convictions and the United States Supreme Court denied

certiorari.

        In January 2009, Hawkins filed a § 2255 motion challenging his convictions on several
grounds. The district court denied the motion, and this Court denied Hawkins a certificate of

appealability.

        In 2010, Hawkins filed a request for this Court’s authorization to file a second or successive

§ 2255 motion, arguing that his counsel provided ineffective assistance and that he was denied his

rights under the Speedy Trial Act, 18 U.S.C. § 3161. He alleged that his contentions were supported

by United States v. Benitez, 34 F.3d 1489, 1494–95 (9th Cir. 1994), which he had just recently


        *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                            No. 12-4401
                                                -2-

discovered. We denied the motion for failure to meet the requirements for filing a successive § 2255

motion.

       Hawkins then filed another § 2255 motion, which the district court transferred to this Court

as a second or successive § 2255 motion filed without this Court’s authorization. Hawkins now

moves this Court for authorization to file a second or successive § 2255 motion. He also moves to

amend this motion.

       Before filing a second or successive motion to vacate in the district court, a federal prisoner
must obtain permission from this Court as provided in 28 U.S.C. §§ 2244, 2255(h); In re Clemmons,

259 F.3d 489, 491 (6th Cir. 2001). Permission will be granted only upon a prima facie showing that

the motion contains a claim based on: “(1) newly discovered evidence that, if proven and viewed

in light of the evidence as a whole, 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); see also 28 U.S.C. § 2244(b)(3). Any claim that was

presented in a prior § 2255 motion must be dismissed. Charles v. Chandler, 180 F.3d 753, 758 (6th

Cir. 1999).

       Hawkins proposes to argue that (1) his guilty plea is void because he pleaded guilty in
reliance on the government’s fraudulent misrepresentation that his state arrest date was irrelevant

for Speedy Trial Act purposes; and (2) the government committed fraud upon the court when it

misrepresented that his state arrest date was irrelevant for Speedy Trial Act purposes. He asserts that

he discovered the government’s fraudulent misrepresentation in July 2010 when he discovered

Benitez. He also asserts that the latter claim is properly brought pursuant to Federal Rule of Civil

Procedure 60(d)(3), and thus it is not subject to the rules governing second or successive § 2255

motions.
                                           No. 12-4401
                                               -3-

        Because the alleged fraud by the government does not “relate[] solely to fraud perpetrated

on the federal habeas court,” Hawkins’s claims were properly brought in a second or successive

§ 2255 motion, rather than under Rule 60(b). Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir.

2006) (emphasis omitted). Additionally, to the extent that Hawkins already raised his claims in his

first motion for authorization to file a second or successive § 2255 motion, they are dismissed. See

Charles, 180 F.3d at 758. Furthermore, Hawkins’s claims do not meet the requirements of

§ 2255(h).
       Hawkins’s motion for authorization to file a second or successive § 2255 motion is denied.

His motion to amend is granted.
