                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                       June 9, 2010
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 08-6245
 v.                                             (D.C. No. 5:95-CR-00158-D-1)
                                                       (W. Dist. Okla.)
 JOHN R. TAYLOR,

          Defendant-Appellant.




                                     ORDER *

Before HARTZ, SEYMOUR and ANDERSON, Circuit Judges.


      John R. Taylor seeks to appeal from the district court’s denial of his Rule

60(b) motion. The district court construed his motion as a second or successive

petition for habeas relief under 28 U.S.C. § 2255, and dismissed it for lack of

subject matter jurisdiction. We construe Mr. Taylor’s notice of appeal and his

brief as an application for authorization to file a successive § 2255 petition, and

we deny that request.

      Mr. Taylor was indicted and convicted of conspiracy to possess with intent

      *
       This order is not binding precedent, except under the doctrines of law of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 10th Cir. R. 32.1 and 10th Cir. R. 32.1.
to distribute cocaine base in violation of 21 U.S.C. § 846, and with intent to

distribute approximately 115 grams of crack cocaine in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2. That conviction was reversed on appeal and

remanded for a new trial. United States v. Taylor, 113 F.3d 1136 (10th Cir.

1997). On retrial, Mr. Taylor was again convicted and received a sentence of 360

months. We affirmed. United States v. Taylor, 183 F.3d 1199 (10th Cir. 1999).

      Over the course of the next seven years, Mr. Taylor filed two federal

habeas petitions that were dismissed on the merits, and two additional petitions in

which we denied him authorization to file a second or successive § 2255 petition.

Mr. Taylor filed the current motion attempting to void his 1998 criminal sentence

on jurisdictional grounds pursuant to Federal Rule of Civil Procedure 60(b). 1 He

asserted that “[w]hen the district court instructed the trial jury ‘that the

government is not required to prove a specific amount or quantity of the

controlled substance that was possessed as in the indictment’ . . . that defective

instruction . . . devested [sic] th[e district] court of jurisdiction to impose a

sentence under § 841(b)(1)(A).” Rec., vol. I at 32. In addition, Mr. Taylor

argued that “[t]he rule of lenity dictates TAYLORS sentence be controlled by 21

U.S.C. § 841(b)(1)(C), which, provides a maximum term of 20 years


      1
       Because Mr. Taylor’s motion is properly construed as a petition pursuant
to 28 U.S.C. § 2255, it is subject to the sixty-day rule applicable in civil cases.
See United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). As such, his
appeal is timely.

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imprisonment and three (3) years supervised release.” Id. at 36.

      The district court held that

      By his Motion, Defendant does not seek to reopen or revisit a prior
      habeas ruling but to vacate his criminal sentence and obtain a new
      sentencing proceeding. See Motion [Doc. 306] at 9. “Rule 60(b) has
      no applicability to a criminal proceeding. While a court always has
      jurisdiction to determine whether it has jurisdiction, Rule 60(b) is not
      an independent source of jurisdiction in a criminal case.” United
      States v. Triplett, 166 F. App’x 362, 365 (10th Cir. 2006). Thus, the
      Court must recharacterize the Motion as either a motion cognizable
      under the Federal Rules of Criminal Procedure or a § 2255 motion.
      Defendant’s arguments to support his allegation regarding a lack of
      subject matter jurisdiction pertain solely to the Court’s authority to
      sentence him under 21 U.S.C. § 841(b)(1)(A) and an alleged
      constructive amendment of the indictment. Defendant challenges
      only the particular sentence he received and not the Court’s
      jurisdiction to hear his case or to impose sentence. At this point in
      the case, the relief sought by Defendant’s Motion may only be
      obtained through a § 2255 proceeding. See 28 U.S.C. § 2255 (“A
      prisoner in custody under sentence of a court established by Act of
      Congress claiming the right to be released upon the ground that . . .
      the court was without jurisdiction to impose such sentence . . . may
      move the court which imposed the sentence to vacate, set aside or
      correct the sentence.”) . . . .

Rec., vol. I at 67-68. The court also noted,

      The issues that Defendant seeks to raise are not unlike those that
      have been the subject of his prior motions based on Apprendi v. New
      Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296
      (2004); and United States v. Booker, 543 U.S. 220 (2005), which the
      court of appeals has already considered and rejected.

Id. at 69. The court concluded that Mr. Taylor’s motion was not a true Rule 60(b)

motion, declined to recharacterize it as a § 2255 petition pursuant to In re Cline,

531 F.3d 1249, 1252 (10th Cir. 2008), and dismissed it for lack of jurisdiction.


                                         -3-
Id. at 68-69. Mr. Taylor seeks to appeal this ruling.

      “Rule 60(b) allows a party to seek relief from a final judgment, and request

reopening of his case, under a limited set of circumstances including fraud,

mistake, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528

(2005). We consider a motion to be a “true” 60(b) motion if it “(1) challenges

only 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,” provided that it does not lead to “a

merits-based attack on the disposition of a prior habeas petition.” Spitznas v.

Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006) (citations omitted). However, “a

Rule 60(b) motion is a second or successive habeas petition if it in substance or

effect asserts or reasserts a federal basis for relief from the petitioner's underlying

conviction.” Id. at 1215.

      Following our instructions in Spitznas outlining the process of evaluating

Rule 60(b) motions, the district court properly determined that Mr. Taylor’s Rule

60(b) motion should be treated as a second or successive habeas petition rather

than a true 60(b) motion because it constituted an attack on his underlying

criminal sentence rather than raising a permissible Rule 60(b) issue regarding a

prior habeas proceeding. Substantially for the reasons set out in its ruling, we

agree with the district court’s determination that Mr. Taylor is attempting to file a

successive habeas petition.

                                          -4-
      Pursuant to 28 U.S.C. § 2255(h), a petitioner must receive certification by

this court before presenting a successive habeas petition in the district court. In

re Cline, 531 F.3d at 1251-52. Without such certification, the district court lacks

jurisdiction over the motion. United States v. Nelson, 465 F.3d 1145, 1148-49

(10th Cir. 2006). Mr. Taylor did not obtain the requisite certification prior to

filing his motion in the district court and the district court correctly dismissed his

motion for lack of subject matter jurisdiction.

      Pursuant to Nelson, 465 F.3d at 1149, we may treat Mr. Taylor’s appeal as

“an implied application to this court for leave to file a second § 2255 motion.”

      Section 2255(h) requires a federal prisoner seeking authorization to
      demonstrate that his proposed claims either depend on “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
      [him] guilty of the offense,” § 2255(h)(1), or rely upon “a new rule
      of constitutional law, made retroactive to cases on collateral review
      by the Supreme Court, that was previously unavailable,” §
      2255(h)(2).

In re Cline, 531 F.3d at 1250. Mr. Taylor’s motion fails to raise a viable

challenge on either of these grounds.

      Accordingly, we DENY Mr. Taylor leave to file a second or successive

habeas petition, DENY his motion to proceed in forma pauperis, and DISMISS




                                          -5-
this attempted appeal.

                               Entered for the Court


                               Stephanie K. Seymour
                               Circuit Judge




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