                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                                 June 15, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 18-4018
                                                    (D.C. Nos. 2:14-CV-00364-TS &
VIRGIL HALL,                                             2:10-CR-01109-TS-1)
                                                               (D. Utah)
      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HOLMES, and PHILLIPS, Circuit Judges.
                  _________________________________

       Virgil Hall, proceeding pro se, seeks a certificate of appealability (COA) to appeal

from the district court’s dismissal of his Fed. R. Civ. P. 60(d)(3) motion as an

unauthorized second or successive 28 U.S.C. § 2255 motion. We grant a COA because

the motion was not subject to the restrictions on second-or-successive § 2255 motions.




       *
         After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent,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. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
We decline to remand for further proceedings, however, because Mr. Hall’s

Rule 60(d)(3) motion does not undermine the result in his § 2255 proceeding.1

                                       Background

       A jury found Mr. Hall guilty of one count of possession with intent to distribute

500 grams or more of cocaine. After being sentenced to 120 months’ imprisonment, he

unsuccessfully pursued a direct appeal and a § 2255 motion. One issue in the § 2255

proceeding was whether Mr. Hall’s indictment was facially invalid. The district court

denied all his claims, and this court denied a COA. United States v. Hall, 605 F. App’x

766, 767 (10th Cir. 2015).

       In January 2018, Mr. Hall filed an “Independent Action to Set Aside a Judgment

Fraud on the Court Rule 60(d)(3)” alleging that the prosecutor had committed fraud on

the court by presenting false evidence in the § 2255 proceeding. Specifically, Mr. Hall

asserted that the copy of the indictment the prosecutor presented for in camera review in

the § 2255 proceeding was different from the copy of the indictment Mr. Hall had

received from the clerk of the district court. The Rule 60(d)(3) motion asserted that the

indictment introduced by the prosecutor “was inadmissible[,] not credible[,] and if

impeached would [have] undoubtedly alter[ed] the out come of the 2255 proceeding and

this case.” R. Vol. V at 14.

       The district court determined the Rule 60(d)(3) motion was an unauthorized

second or successive § 2255 motion and dismissed it for lack of jurisdiction.


       1
        Because we conclude that Mr. Hall’s arguments ultimately do not warrant
appellate relief, we have not ordered the government to file an answer brief.
                                             2
See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251-52 (10th Cir. 2008)

(per curiam). In footnotes, the district court also stated that “any differences [between the

indictments] do not alter the Court’s previous decision,” R. Vol. V at 30 n.1, and that

“[e]ven if this claim is not a second or successive petition, it would fail on the merits,” id.

at 32 n.11.

                                       COA Analysis

       To appeal from the district court’s decision, Mr. Hall must obtain a COA.

See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). A COA can issue

only if the movant makes “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Because the district court decided his filing on a procedural

ground, Mr. Hall must show “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) (emphasis added). We conclude that

Mr. Hall has satisfied both prongs of the Slack test.

       Mr. Hall already has pursued relief under § 2255, and therefore he must obtain this

court’s authorization before filing another § 2255 motion in the district court.

See 28 U.S.C. § 2255(h). (And that is true notwithstanding Mr. Hall’s allegations that the

district court failed to comply with 28 U.S.C. § 2255(a) in his first proceeding.) “A

prisoner’s post-judgment motion is treated like a second-or-successive § 2255 motion—

and is therefore subject to the authorization requirements of § 2255(h)—if it asserts or

reasserts claims of error in the prisoner’s conviction.” United States v. Baker, 718 F.3d

                                               3
1204, 1206 (10th Cir. 2013). But a motion that “attacks, not the substance of the federal

court’s resolution of a claim on the merits, but some defect in the integrity of the federal

habeas proceedings,” does not qualify as a second or successive motion. Gonzalez v.

Crosby, 545 U.S. 524, 532 (2005).

       “Fraud on the habeas court is one example of such a defect.” Id. n.5. “[A]n

allegation that the state presented fraudulent testimony before the habeas court that was

separate and distinct from any previous fraud alleged to have tainted the initial conviction

or direct appeal may be the subject of a true 60(b) motion.” Spitznas v. Boone, 464 F.3d

1213, 1216 (10th Cir. 2006). In contrast, “a motion alleging fraud on the court in a

defendant’s criminal proceeding must be considered a second-or-successive collateral

attack because it asserts or reasserts a challenge to the defendant’s underlying

conviction.” Baker, 718 F.3d at 1207 (emphasis added).

       Mr. Hall’s Rule 60(d)(3) motion alleged fraud on the court in the § 2255

proceedings, not in the underlying criminal proceeding. See R. Vol. V at 10 (“[T]he

Assistant U.S. Attorney . . . performed an egregious act of fraud on the court when he

presented an indictment to the sentencing judge in camera in Mr. Hall’s 2255 proceeding

that is outside the record and not an exact duplicate of what’s in possession of the clerk of

court.”); id. at 13 (“[The prosecutor] knowingly and willingly deceived the Court by

showing a different indictment to the judge in camera denying Mr. Hall an[] opportunity

to object, argue and point out any oversight, mistake or error the Court has made by

going with an indictment outside the record.”). In light of these allegations and the



                                              4
applicable precedent, reasonable jurists could debate the district court’s procedural

determination.

       Regarding the other prong of the Slack test, this court has explained that it will

“only take a ‘quick’ look at the federal habeas petition to determine whether [the

petitioner] has facially alleged the denial of a constitutional right.” Gibson v. Klinger,

232 F.3d 799, 803 (10th Cir. 2000) (brackets and internal quotation marks). Mr. Hall’s

claim that the prosecutor committed fraud on the court in this § 2255 proceeding satisfies

this standard. Therefore, we grant a COA.

                                      Merits Analysis

       The district court erred in concluding that the motion was a second-or-successive

§ 2255 motion. As discussed above, the Rule 60(d)(3) motion confines itself to alleging

fraud in the § 2255 proceeding. Under Gonzalez, an allegation of “[f]raud on the federal

habeas court” generally is an example of “a defect in the integrity of the federal habeas

proceedings” rather than a second-or-successive § 2255 motion. Gonzalez, 545 U.S. at

532 & n.5. Baker and Spitznas also both indicate that a claim of fraud on the habeas

court is not a second-or-successive claim. Baker, 718 F.3d at 1207; Spitznas, 464 F.3d

at 1216.

       Admittedly, Mr. Hall’s fraud-on-the-habeas-court claim may be viewed as leading

to a challenge to the denial of his § 2255 claim regarding the facial validity of his

indictment. See Spitznas, 464 F.3d at 1215-16 (stating that a proceeding is not subject to

the restrictions on second-or-successive motions if it “challenges a defect in the integrity

of the federal habeas proceeding, provided that such a challenge does not itself lead

                                              5
inextricably to a merits-based attack on the disposition of a prior habeas petition”

(emphasis added)). Nevertheless, this court’s precedent counsels against concluding that

Mr. Hall’s claim is subject to the requirements of § 2255(h).

       In In re Pickard, 681 F.2d 1201, 1205 (10th Cir. 2012) , this court held that a

claim that the prosecutor withheld information during a § 2255 proceeding “challeng[ed]

the integrity of the § 2255 proceedings” and therefore was a proper Fed. R. Civ. P. 60(b)

motion, not a second-or-successive § 2255 claim. Pickard discussed Spitznas, stating,

       The words lead inextricably should not be read too expansively. They
       certainly should not be read to say that a motion is an improper Rule 60(b)
       motion if success on the motion would ultimately lead to a claim for relief
       under § 2255. What else could be the purpose of a 60(b) motion? The
       movant is always seeking in the end to obtain § 2255 relief. The movant in
       a true Rule 60(b) motion is simply asserting that he did not get a fair shot in
       the original § 2255 proceeding because its integrity was marred by a flaw
       that must be repaired in further proceedings. . . . [T]he [Spitznas] proviso
       means only that a Rule 60(b) motion is actually a second-or-successive
       petition if the success of the motion depends on a determination that the
       court had incorrectly ruled on the merits in the habeas proceeding.
681 F.3d at 1206. Mr. Hall’s Rule 60(d)(3) claim is similar to the claim that Pickard held

was not subject to the restrictions on second-or-successive § 2255 claim. See id. (stating

that “the claim in the Rule 60(b) motion is that the prosecutor committed fraud in the

§ 2255 proceedings that prevented Defendants from obtaining discovery to establish their

§ 2255 claims”). As in Pickard, then, the district court had jurisdiction to consider

Mr. Hall’s fraud-on-the-habeas court claim.

       Pickard remanded for the district court to consider the movant’s claim in the first

instance. See id. at 1207. We decline to remand for further proceedings, however,

because even assuming that Mr. Hall could establish that the prosecutor’s submission of

                                              6
his copy of the indictment constituted fraud on the court, Mr. Hall’s evidence ultimately

does not undermine the result in the § 2255 proceeding.

       The differences between the copies of the indictment appear to be court stamps,

the manner of redacting the signature of a grand jury foreperson, and the prosecutor’s

signature. These differences involve, at most, technical irregularities, and therefore the

fact that the prosecutor’s copy differed from the court’s copy of the indictment does not

undermine the result in the § 2255 proceeding. See Hobby v. United States, 468 U.S.

339, 345 (1984) (“Even the foreman’s duty to sign the indictment is a formality, for the

absence of the foreman’s signature is a mere technical irregularity that is not necessarily

fatal to the indictment.”); United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997)

(“An indictment need only meet minimal constitutional standards, and we determine the

sufficiency of an indictment by practical rather than technical considerations.”); see also

United States v. Deffenbaugh Indus., Inc., 957 F.2d 749, 755 (10th Cir. 1992) (“[C]laims

attacking the technical validity of indictments become harmless error and therefore moot

and unreviewable after final judgment.”). The district court correctly predicted that

Mr. Hall’s claim would not affect its prior denial of § 2255 relief.

                                        Conclusion

       For these reasons, we grant a COA but affirm the determination that Mr. Hall is

not entitled to relief.2 Mr. Hall’s motion to proceed without prepayment of costs and


       2
         “We can, of course, affirm a lower court’s ruling on any grounds adequately
supported by the record, even grounds not relied upon by the district court.” United
States v. Snyder, 793 F.3d 1241, 1243 (10th Cir. 2015) (internal quotation marks
omitted).
                                              7
fees is granted. Under 28 U.S.C. § 1915(a) and (b)(1), however, only prepayment is

excused. Mr. Hall remains obligated to pay the full amount of costs and fees.


                                             Entered for the Court
                                             Per Curiam




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