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

                                    TENTH CIRCUIT                             April 8, 2014

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,
                                                              No. 13-6252
 v.                                             (D.C. Nos. 5:12-CV-00701-L & 5:09-CR-
                                                               00352-L-1)
 ROBERT EARNEST MILLER,                                       (W.D. Okla.)
           Defendant–Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


       Robert Miller, a federal prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to challenge the district court’s refusal to reconsider its denial of

his 28 U.S.C. § 2255 motion. We deny a COA. Because the district court lacked

jurisdiction over Miller’s motion to reconsider, we vacate and remand to the district court

with instructions to dismiss.




       *
         This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                             I

       Following a 2010 jury trial, Miller was convicted of being a felon in possession of

a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Based on his criminal

history, Miller qualified as an armed career criminal pursuant to 18 U.S.C. § 924(e) and

§ 4B1.4 of the United States Sentencing Guidelines (“Guidelines”). He was sentenced to

240 months’ imprisonment followed by four years of supervised release, within the

Guidelines recommended range of 235-293 months.

       Miller unsuccessfully appealed his conviction and sentence to this court. United

States v. Miller, 421 F. App’x 851 (10th Cir. 2011) (unpublished). He then sought post-

conviction relief pursuant to 28 U.S.C. § 2255, arguing that the court erred by enhancing

his sentence under § 924(e), that it relied on impermissible evidence in finding the

predicate offenses for that enhancement, and that his trial counsel was ineffective for

failing to object to the enhancement. The district court denied Miller’s § 2255 motion

and refused to grant a COA. This court also denied a COA. United States v. Miller, 539

F. App’x 874 (10th Cir. 2013) (unpublished).

       While Miller’s request for a COA was pending before this court, he filed a Fed. R.

Civ. P. 60(b) motion in the district court seeking to reopen his case based on the Supreme

Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013). The district court

denied that motion, citing our decision in Allison v. Bank One-Denver, 289 F.3d 1223,

1243 (10th Cir. 2002), for the proposition that it had jurisdiction to deny a Rule 60(b)


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motion while an appeal was pending. Miller sought reconsideration under Fed. R. Civ. P.

59(e), which the district court also denied. Miller then filed a timely notice of appeal.

                                              II

       We must decide whether Miller’s Rule 60(b) motion was a “true” Rule 60(b)

motion or a second or successive § 2255 motion in the guise of a Rule 60(b) motion. See

Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006). If Miller’s filing was a true

Rule 60(b) motion, we would determine whether he is entitled to a COA. Id. at 1218.

But a pleading that should be treated as a “second or successive § 2255 motion cannot be

filed in district court without approval by a panel of this court.” United States v. Nelson,

465 F.3d 1145, 1148 (10th Cir. 2006). If a district court treats what should have been

characterized as a second or successive motion as a true Rule 60(b) motion and rules on

the merits, we must “vacate the district court’s order for lack of jurisdiction.” Spitznas,

464 F. 3d at 1219.

       Miller’s purported Rule 60(b) motion was in fact an unauthorized second or

successive habeas petition. “It is the relief sought, not [a] pleading’s title, that determines

whether the pleading is a § 2255 motion.” Nelson, 465 F.3d at 1149. A motion that

argues “a subsequent change in substantive law is a reason justifying relief from the

previous denial of a claim” should be treated as a successive habeas motion. Gonzalez v.

Crosby, 545 U.S. 524, 531 (2005) (quotation omitted). Miller’s Rule 60(b) motion was

expressly based on “an intervening change in the law.” He cites the Supreme Court’s


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decision in Alleyne, which held that “any fact that increases the mandatory minimum is

an ‘element’ that must be submitted to the jury,” 133 S. Ct. at 2155, and argues that the

prior convictions qualifying him as an armed career criminal were elements of his crime.

Under Gonzalez, such a claim cannot be made in a true Rule 60(b) motion. 545 U.S. at

531.

       We nevertheless “construe [Miller’s] appeal as an application to file a second or

successive [motion].” Spitznas, 464 F.3d at 1213. We do not authorize a second or

successive habeas motion unless it is based on “newly discovered evidence” or “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(h). The rule announced in

Alleyne has not been made retroactive by the Supreme Court. In re Payne, 733 F.3d

1027, 1029-30 (10th Cir. 2013). We accordingly deny authorization to file a second or

successive § 2255 motion.

                                            III

       We DENY a COA, VACATE the district court’s denial of Miller’s putative Rule

60(b) and Rule 59(e) motions, and REMAND to the district court with instructions to




                                           -4-
dismiss for lack of jurisdiction. Miller’s motion to proceed in forma pauperis is

GRANTED.




                                                 Entered for the Court



                                                 Carlos F. Lucero
                                                 Circuit Judge




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