                                                                   F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  February 6, 2006
                 UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                             TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                   No. 05-5065
 v.                                        (D.C. No. 97-CR-00171-C-1)
                                          (Norther District of Oklahoma)
 JEFFREY WILLIAMS,

          Defendant - Appellant.




                        ORDER AND JUDGMENT *



Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an
order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
      Jeffrey Dan Williams appeals the district court’s denial of his post-

conviction motion filed under Fed. R. Civ. P. 60(b). We vacate the order

for lack of subject matter jurisdiction, construe Mr. Williams’ notice of

appeal and appellate briefs as an implied application for authorization to

file another 28 U.S.C. § 2255 motion, and deny authorization.

      Mr. Williams filed a post-conviction motion in the district court

arguing that his sentence was imposed in violation of his Sixth Amendment

right to have the jury determine the facts underlying the enhancement of his

sentence based on drug quantity, his role in the offense, and obstruction of

justice. He relied on the Booker line of cases. See United States v. Booker,

543 U.S. 220 (2005).

      Mr. Williams has previously filed post-conviction motions

challenging the convictions under attack here. See United States v.

Williams, No. 01-5204, 44 Fed. Appx. 443 (10th Cir. Aug. 28, 2002)

(unpublished); United States v. Williams, No. 04- 5013 (10th Cir. Jul. 20,

2004) (unpublished).

      The motion filed in the district court constituted an unauthorized

successive § 2255 motion. See, e.g. United States v. Torres, 282 F.3d

1241, 1246 (10th Cir. 2002) (“[T]o allow a petitioner to avoid the bar

against successive § 2255 motions by simply styling a petition under a


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different name would severely erode the procedural restraint imposed under

28 U.S.C. §§ 2244(b)(3) and 2255.”) (citing to Lopez v. Douglas, 141 F.3d

974, 975 (10th Cir.) (holding that a post-judgment Rule 60(b)(6) motion,

filed in a habeas proceeding, should be treated as “a second habeas petition

under the Antiterrorism and Effective Death Penalty Act ....”), cert. denied,

525 U.S. 1024 (1998)).

      The Supreme Court decision in Gonzalez v. Crosby, 125 S.Ct. 2641,

2648, 2651 (2005) (holding that a Rule 60(b) motion filed in a § 2254 case

must be treated as a successive habeas petition if it asserts or reasserts a

substantive claim to set aside the petitioner’s state conviction, as opposed

to asserting a defect “in the integrity of the federal habeas proceedings”),

does not change this result.

      First, the defendant’s Rule 60(b) motion seeks to raise a new claim,

the legality of his sentence under the Booker line of cases. Second, the

Gonzalez court specifically stated that its decision does not apply to § 2255

proceedings. “Federal prisoners generally seek postconviction relief under

§ 2255, which contains its own provision governing second or successive

applications. Although that portion of § 2255 is similar to, and refers to,

the statutory subsection applicable to second or successive § 2254

petitions, it is not identical. Accordingly, we limit our consideration to §


                                        3
2254 cases.” 125 S.Ct. at 2646 n. 3.

      We will, however, construe Mr. Williams’ notice of appeal and

appellate briefs as a request for authorization to file another § 2255 motion.

See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997).



      We have thoroughly reviewed the matter and conclude that Mr.

Williams has failed to make the prima facie showing required by § 2255 as

amended by the Antiterrorism and Effective Death Penalty Act. His

contentions are not based 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 fact finder

would have found [him] guilty of the offense” or on 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.

      Booker is not retroactive to cases on collateral review. See United

States v. Bellamy, 411 F.3d 1182, 1184 (10th Cir. 2005) (holding that

“Booker does not apply retroactively to initial habeas petitions.”). Nor is it

grounds to file another § 2255 motion. See Bey v. United States, 399 F.3d

1266, 1269 (10th Cir. 2005) (“Pursuant to the Supreme Court’s holding in

[Tyler v. Cain, 533 U.S. 656 (2001)] we must conclude that under the


                                       4
Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-

132, 110 Stat. 1214, Booker may not be applied retroactively to second or

successive habeas petitions.”).

      Accordingly, the district court order is VACATED, and the implied

application for authorization to file another § 2255 motion is DENIED.

Mr.




Williams’ motion to supplement his brief is DENIED.


                        Entered for the Court


                        PER CURIAM




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