                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      December 8, 2011
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                  TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 11-5072
    v.                                         (D.C. No. 4:02-CR-00088-CVE-1)
                                                          (N.D. Okla.)
    EFREM ZEMBLISH HARRIS,
    a/k/a Base,

                Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, LUCERO, and O’BRIEN, Circuit Judges.



         Efrem Zemblish Harris, a federal prisoner proceeding pro se, seeks to

appeal the district court’s dismissal of his post-judgment motions for lack of

jurisdiction and its denial of his Fed. R. Civ. P. 59(e) motion to alter or amend

that dismissal. We deny a certificate of appealability (COA) and dismiss this

proceeding.

         In 2003, Mr. Harris was sentenced to life imprisonment for

drug-trafficking offenses. He pursued a direct appeal, see United States v. Harris,


*
       This order is not binding precedent except under the doctrines of law of the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.
369 F.3d 1157 (10th Cir. 2004), and relief under 28 U.S.C. § 2255, see United

States v. Harris, 284 F. App’x 558, 558-60 (10th Cir. 2008) (discussing, in

connection with a Fed. R. Civ. P. 60(b) motion, the procedural history of

Mr. Harris’s § 2255 motion). Since then, he has filed numerous post-judgment

motions for relief from his convictions.

      As relevant to this matter, in April 2011 he simultaneously filed motions

under Fed. R. Civ. P. 60(b), Fed. R. Civ. P. 15(a), and Fed. R. Civ. P. 15(c) in

which he asserted that facts alleged in his original § 2255 motion would have

supported a claim that a certain search warrant was unconstitutional for failure to

show a nexus between a crime or evidence and the place to be searched. At the

time he prepared the § 2255 motion, however, he did not realize the significance

of the facts and so did not plead that constitutional claim. Therefore, he sought to

reopen the judgment and amend his original § 2255 motion to include the claim,

and to have the amended motion relate back to the original motion. The district

court concluded that the motions attempted to assert unauthorized second or

successive § 2255 claims, which the court lacked jurisdiction to consider and

therefore dismissed. See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam). Mr. Harris then filed an unsuccessful Rule 59(e)

motion to alter or amend that decision.

      Mr. Harris must obtain a COA to pursue an appeal. United States v.

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

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rests on procedural grounds, he 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

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

473, 484 (2000).

      A prisoner’s post-judgment motion should be treated like a second or

successive § 2255 motion (and therefore subject to the authorization requirements

of § 2255(h)) if it asserts or reasserts claims of error in the prisoner’s conviction.

See Gonzalez v. Crosby, 545 U.S. 524, 531-32, 538 (2005); United States v.

Nelson, 465 F.3d 1145, 1147-49 (10th Cir. 2006). “That is not the case, however,

when a Rule 60(b) motion attacks . . . some defect in the integrity of the federal

habeas proceedings.” Gonzalez, 545 U.S. at 532.

      Contrary to Mr. Harris’s argument, his previous failure to recognize the

existence of a potential constitutional claim is not a defect in the § 2255

proceedings as contemplated by Gonzalez. See id. at 532 n.5 (stating that “an

attack based on the movant’s own conduct . . . ordinarily does not go to the

integrity of the proceedings, but in effect asks for a second chance to have the

merits determined favorably”). Rather, his motions were all directed toward

reopening the § 2255 proceeding to allow him to pursue a previously unasserted

claim for relief from his convictions. This type of action clearly requires this

court’s authorization under § 2255(h). See Gonzalez, 545 U.S. at 532; Nelson,

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465 F.3d at 1148-49. Without such authorization, the district court had no

jurisdiction to consider the motions and appropriately dismissed them. See Cline,

531 F.3d at 1251. Finally, all of this being so, the court did not err in denying the

Rule 59(e) motion.

      We deny a COA and dismiss this proceeding.


                                               Entered for the Court,




                                               ELISABETH A. SHUMAKER, Clerk




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