                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 21 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 00-3065
                                                            (D. Kan.)
 DAVID E. STERNBERG,                              (D.Ct. No. 99-CV-3166-KHV)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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.



      Appellant David E. Sternberg, a federal prisoner appearing pro se, appeals


      *
          This order and judgment is not binding precedent except under the doctrines of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.
the district court’s decision dismissing his motion filed pursuant to Federal Rule

of Civil Procedure 59(e). We construe Mr. Sternberg’s motion as one filed under

Federal Rule of Civil Procedure 60(b), construe his appeal as an implied

application to file a second or successive motion under 28 U.S.C. § 2255, and

deny him leave to file a § 2255 motion in the district court.



      This appeal is fraught with several procedural hurdles we must overcome in

order to determine our and the district court’s jurisdiction over Mr. Sternberg’s

pleadings, and to ultimately determine the disposition of Mr. Sternberg’s appeal.

Our first task is to determine the scope of our jurisdiction over Mr. Sternberg’s

appeal. We begin by noting that on September 9, 1999, the district court issued a

Memorandum and Order denying Mr. Sternberg’s § 2255 motion on the merits.

United States v. Sternberg, 1999 WL 760337 (D. Kan., Sept. 8, 1999). On

September 23, 1999, Mr. Sternberg mailed a post-judgment motion to alter or

amend the district court’s judgment pursuant to Fed. R. Civ. P. 59(e), which the

clerk filed on September 29, 1999. On January 4, 2000, the district court denied

Mr. Sternberg’s Rule 59(e) motion both as untimely and on the merits. Mr.

Sternberg filed a notice of appeal on February 28, 2000.



      As the district court noted, Mr. Sternberg did not file (or even mail) his


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Rule 59(e) motion within ten days of the district court’s judgment. Because Mr.

Sternberg’s motion was filed more than ten days after the district court’s entry of

final judgment, and because the motion challenged the basis of the district court’s

denial of relief on his § 2255 motion, we will construe his post-judgment motion

as one filed pursuant to Fed. R. Civ. P. 60(b)(6). See Weitz v. Lovelace Health

Sys., Inc., 214 F.3d 1175, 1178 (10th Cir. 2000). However, because Mr.

Sternberg did not file his motion within ten days of the district court’s decision

dismissing his § 2255 motion, his Rule 60 motion did not toll the time to file an

appeal with this court from the district court’s § 2255 judgment. See Fed. R.

App. P. 4(a)(4)(A)(vi); Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995).

Therefore, Mr. Sternberg had only sixty days to file an appeal from the district

court’s § 2255 judgment. See Fed. R. App. P. 4(a)(1)(B) (allowing the notice of

appeal to be filed sixty days after the judgment or order appealed from is entered

if the United States of its officer or agency is a party.) Because Mr. Sternberg did

not timely appeal the district court’s decision dismissing his § 2255 motion, we

lack jurisdiction to review that underlying decision. Hawkins, 64 F.3d at 546.



      On the other hand, Mr. Sternberg’s notice of appeal was timely filed from

the entry of the district court’s order denying his motion which we construe as a

Rule 60 motion. Thus, Mr. Sternberg timely filed his appeal of the district court’s


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decision denying the Rule 60 motion, and we have jurisdiction to review his

appeal of that decision only. Id.



      We now turn to an examination of Mr. Sternberg’s Rule 60 motion in which

he challenged the basis of the district court’s decision dismissing his § 2255

motion. We have held Rule 60(b)(6) motions, such as the one at issue, cannot be

used to circumvent restrictions imposed on successive motions. See Lopez v.

Douglas, 141 F.3d 974, 975 (10th Cir.) (per curiam), cert. denied, 525 U.S. 1024

(1998). Thus, we treat a post-judgment Rule 60(b)(6) motion filed in a habeas

proceeding as a second or successive motion under the Antiterrorism and

Effective Death Penalty Act of 1996. See Lopez, 141 F.3d at 975. In order to file

a second or successive § 2255 motion in the district court, the movant must obtain

prior authorization from this court. See 28 U.S.C. §§ 2244(3)(A), 2255. Because

Mr. Sternberg failed to obtain our authorization, the district court lacked

jurisdiction to decide his Rule 60(b) motion, and therefore, we must vacate the

district court’s order denying that motion. See Lopez, 141 F.3d at 975-76.



      Having made this determination, we next construe Mr. Sternberg’s notice of

appeal and brief on appeal together as an implied application for leave to file

another § 2255 motion in the district court. See Lopez, 141 F.3d at 976. In order


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to obtain authorization from this court to file a second § 2255 motion in the

district court, Mr. Sternberg must make the requisite showing under 28 U.S.C.

§ 2255. Specifically, he must show:

      (1) 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; or

      (2) 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(4)(1), (2). In short, Mr. Sternberg must demonstrate either 1)

previously undiscoverable facts sufficient to establish he would not have been

found guilty of the offense, or 2) reliance on a new, retroactive rule of

constitutional law.



      Following a review of Mr. Sternberg’s implied application, we determine

his application does not meet the requirements under § 2255. In sum, Mr.

Sternberg’s appeal merely attacks the district court’s decision on his § 2255

motion, which we lack jurisdiction to consider. Even if we construe Mr.

Sternberg’s pro se appeal liberally and assume these same arguments somehow

apply to his Rule 60(b) motion, Mr. Sternberg does not allege nor show a

previously undiscoverable factual predicate existed sufficient to establish that no

reasonable fact finder would have found him guilty of the underlying offense, or

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that his claims rely on a new, retroactive rule of constitutional law. 28 U.S.C.

§ 2255. Instead, Mr. Sternberg merely reiterates issues raised and addressed by

the district court in dismissing his § 2255 motion.



      For these reasons, we are compelled to deny Mr. Sternberg’s application

without further discussion, other than to reject Mr. Sternberg’s contention that our

decision in United States v. Lewis, 138 F.3d 840 (10th Cir. 1998), on which the

district court partially relied in dismissing Mr. Sternberg’s § 2255 motion, is no

longer good law. As the district court held in its decision denying Mr.

Sternberg’s Rule 60(b) motion, Lewis “remains good law in the Tenth Circuit”

despite the fact that a Ninth Circuit case on which it relied was withdrawn and

reversed. See United States v. Barron, 127 F.3d 890 (9th Cir. 1997), withdrawn,

138 F.3d 809 (9th Cir. 1998), rev’d, 172 F.3d 1153 (1999) (en banc). We note

our holding in Lewis follows our holdings in other Tenth Circuit court cases

issued prior to and after Lewis. See United States v. Easterling, 157 F.3d 1220,

1223-24 (10th Cir. 1998); Lewis, 138 F.3d at 842-43; United States v. Bunner,

134 F.3d 1000, 1004-05 (10th Cir.), cert. denied, 525 U.S. 830 (1998); United

States v. Mendoza, 118 F.3d 707, 709-710 (10th Cir.), cert. denied, 522 U.S. 961

(1997). Despite Mr. Sternberg’s contentions, we are not required to follow the

Ninth Circuit’s final decision in Barron as it represents nonbinding,


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nonprecedential authority, which this circuit is not required to follow. See Garcia

v. Miera, 817 F.2d 650, 658 (10th Cir. 1987), cert. denied, 485 U.S. 959 (1988).



      For these reasons, we conclude Mr. Sternberg fails to make the prima facie

showing necessary to satisfy the requirements under the Antiterrorism and

Effective Death Penalty Act for a second or successive habeas application.

Accordingly, we VACATE the district court’s January 3, 2000 order denying Mr.

Sternberg’s Rule 60(b)(6) motion, and deny Mr. Sternberg’s implied application

for leave to file a second or successive § 2255 motion in the district court.

Because this appeal involves an implied application for leave to file a successive

motion, no certificate of appealability is required and therefore, Mr. Sternberg’s

request for a certificate of appealability is denied.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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