                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS October 8, 2013
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,              Nos. 13-3071 and 13-3072
          v.                                               D. Kansas
 LARRY RAIFSNIDER,                            (D.C. Nos. 6:04-CR-10255-MLB-1
                                                 and 6:05-CR-10052-MLB-1)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases

are therefore ordered submitted without oral argument.

      In 2005, Larry Raifsnider pleaded guilty to numerous federal crimes,

including kidnapping and possessing a firearm during a crime of violence. His


      *
        This order and judgment is not binding precedent except under the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.
attempt to obtain post-conviction relief pursuant to 28 U.S.C. § 2255 was

unavailing. United States v. Raifsnider, 252 F. App’x 866 (10th Cir. 2007). On

January 22, 2013, Raifsnider filed the current pro se Motion for Order to Nullify

Guilty Plea. To avoid having his motion treated as a second or successive § 2255

motion, Raifsnider contended he was seeking relief from his convictions pursuant

to Rule 60(d)(1) of the Federal Rules of Civil Procedure.

      Consistent with Raifsnider’s characterization of his motion as seeking relief

from a criminal judgment, the district court concluded he could not proceed

pursuant to Rule 60(d)(1) because the Federal Rules of Civil Procedure apply only

in civil proceedings. Accordingly, the court denied the motion. On appeal,

Raifsnider argues, inter alia, that the district court erred in concluding Rule 60 is

only applicable in civil proceedings. The district court’s conclusion, however, is

undeniably correct. United States v. McCalister, 601 F.3d 1086, 1087-88 (10th

Cir. 2010).

      After review of the appellate filings, the district court’s order, and the

entire record, we affirm the denial of Raifsnider’s motion for substantially the

reasons stated by the district court and conclude the appeal is wholly frivolous.




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Raifsnider’s motion to proceed in forma pauperis on appeal is denied and the

fees are now due. See 28 U.S.C. § 1915(b).

                                        ENTERED FOR THE COURT


                                        Michael R. Murphy
                                        Circuit Judge




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