                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       April 25, 2007
                          FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
                                                        No. 06-6328
 v.                                            (D.C. Nos. 98-CR-00183-R and
                                                      06-CV-00227-R)
 W ILLIA M G EN E EA TO N ,                          (W .D. Oklahoma )

              Defendant-Appellant.



          OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before KELLY, M cCO NNELL, and GORSUCH, Circuit Judges.


      Defendant Eaton, proceeding pro se, requests a certificate of appealability

(“COA”) to appeal the district court’s September 28, 2006 Order dismissing his

“petition for relief under Fed. Rule Civ. Proc. Rule 60(b)(4).” Because Defendant

has failed to make “a substantial showing of the denial of a constitutional right,”

see 28 U.S.C. § 2253(c)(2), we deny his request for COA and dismiss the appeal.

      In 2000, Defendant filed his first 28 U.S.C. § 2255 motion under the

Antiterrorism and Effective Death Penalty Act (“AEDPA ”) challenging his 1999

conviction and sentence. The motion was denied by the district court. On appeal,




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel.
this court denied COA and dismissed. See United States v. Eaton, 20 Fed. Appx.

763 (10th Cir. 2001). In 2005, Defendant filed an unauthorized second § 2255

motion in the district court raising a new claim as to his 1999 sentence. In a June

2, 2006 Order, the district court transferred the unauthorized § 2255 motion to

this court pursuant to Coleman v. United States, 106 F.3d 399, 341 (10th Cir.

1997) (per curiam).

      On September 20, 2006, Defendant filed a “petition for relief under Fed.

Rule Civ. Proc. Rule 60(b)(4),” challenging the June 2, 2006 Order of transfer as

“improper” and requesting the order be vacated. In a September 28, 2006 Order,

the district court dismissed Defendant’s Rule 60(b)(4) motion, finding that it was

correct in transferring his unauthorized § 2255 motion to this court. Defendant

appeals.

      The Rule 60(b)(4) motion filed by Defendant constituted a “true Rule

60(b)” challenging a perceived defect in the integrity of the district court’s June

2, 2006 Order. See Gonzalez v. Crosby, 545 U.S. 524, 532-33 (2005); United

States v. Nelson, 465 F.3d 1145, 1147-48 (10th Cir. 2006). Defendant may appeal

the dismissal of his Rule 60(b)(4) motion only if a COA is issued. See §

2253(c)(1). To make the requisite showing, Defendant must demonstrate that

“reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” See M iller-EL v. Cockrell, 537 U.S.

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322, 336 (2003) (quoting Slack v. M cDaniel, 529 U.S. 473, 484 (2000)) (internal

quotation marks omitted).

      Second or successive § 2255 motions cannot be filed in the district court

until this court has granted the required authorization under the AEDPA. See

United States v. Nelson, 465 F.3d at 1148. Because Defendant filed his

unauthorized second § 2255 motion, raising a new sentencing claim, before

obtaining authorization from this court, the district court properly recognized it

lacked subject matter jurisdiction to decide the unauthorized § 2255 motion and

acted correctly in transferring the unauthorized § 2255 motion to this court.

      Having reviewed Defendant’s application for COA, appellate brief, and the

record on appeal, we conclude that the district court did not abuse its discretion in

dismissing Defendant’s Rule 60(b)(4) motion. No reasonable jurist w ould

disagree.

      Accordingly, the application for COA is DENIED. The motion to proceed

in form a pauperis is DENIED. The motion for summary judgment is DENIED.

The appeal is DISM ISSED.



                                               ENTERED FOR THE COURT
                                               PER CURIAM




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