                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                                       PUBLISH
                                                                               APR 8 1998
                      UNITED STATES COURT OF APPEALS
                                                                         PATRICK FISHER
                                                                                   Clerk
                            FOR THE TENTH CIRCUIT



ALFONSO ALBERT LOPEZ,

      Petitioner - Appellant,

v.                                                            No. 96-6384

PETER A. DOUGLAS; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,

      Respondents - Appellees.



                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                               (D.C. No. 86-CV-1890-T)



Submitted on the briefs:*

Alfonso A. Lopez, pro se.




      *
         After examining the brief filed by Alfonso A. Lopez and the 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); 10th Cir. R. 34.1.9. The case is
submitted without oral argument.
Before ANDERSON, KELLY, and MURPHY, Circuit Judges.


PER CURIAM.



       Petitioner Alfonso Albert Lopez appeals the district court order denying his motion

under Fed. R. Civ. P. 60(b)(6).

       In 1981, Petitioner pled guilty in state court to murder in the first degree and was

sentenced to life imprisonment. He also pled guilty to shooting with intent to kill and was

sentenced to a twenty-five year term to run consecutively to the life imprisonment sentence.

He did not move to withdraw his pleas or file direct appeals.

       In August 1986, he filed his first 28 U.S.C. § 2254 petition, contending that he

received ineffective assistance of counsel and that his guilty pleas were involuntary. The

petition was denied on the merits. This court denied issuance of a certificate of probable

cause and dismissed the appeal. Lopez v. Douglas, No. 87-2004 (10th Cir. Mar. 17, 1988)

(unpublished).

       In June 1996, he filed a motion under Fed. R. Civ. P. 60(b)(6) to vacate the judgment

denying his first § 2254. He contended in relevant part that the decision in Cooper v.

Oklahoma, 116 S.Ct. 1373 (1996), affected the district court’s determination of his prior

ineffective assistance of counsel claim because he was “prejudiced by his counsel’s failure

to request a pre-plea competency determination.” Id. at 1-2. The district court adopted the

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magistrate judge’s supplemental findings and recommendation and denied the motion.

Petitioner appeals.

       The Rule 60(b)(6) motion filed by Petitioner Lopez in June 1996 was a second habeas

petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See

Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997). “Rule 60(b) cannot be used to circumvent

restraints on successive habeas petitions.” Felker v. Turpin, 101 F.3d 657, 661 (11th Cir.),

cert. denied, 117 S.Ct. 451 (1996). Moreover, “the successive petition restrictions contained

in the amendments to [28 U.S.C.] § 2244(b) apply to Rule 60(b) proceedings, even where

those proceedings seek to amend a judgment that became final before the effective date of

the amendments.” Id.

       Since Petitioner filed his second § 2254 petition after April 24, 1996, the effective

date of the AEDPA, he was required to comply with the Act’s relevant provisions and obtain

prior authorization from this court before filing in the district court. He failed to obtain this

authorization. Therefore, the district court lacked jurisdiction to decide his unauthorized

second petition, and this court must vacate the district court order. See United States v.

Avila-Avila, 132 F.3d 134, 1348-49 (10th Cir. 1997).

       However, we will construe Petitioner’s notice of appeal and appellate brief as an

implied application under 28 U.S.C. § 2244(b)(3)(A) for leave to file a second habeas

petition in the district court. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997).

       In his implied application, he argues that the decision in Cooper constituted an


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intervening change of law, which “affects the district court’s . . . denial of his claim of

ineffective assistance of counsel” raised in his first § 2254. Id. at 5.

       We have thoroughly reviewed the implied application and conclude Petitioner Lopez

has failed to make a prima facie showing that satisfies AEDPA’s criteria for the filing of a

second habeas petition. See 28 U.S.C. § 2244(b)(3)(C). His claim does not rely on a new

rule of constitutional law made retroactive to cases on collateral review by the Supreme

Court that was previously unavailable, § 2244(b)(2)(A). In Cooper, the Supreme Court

explained at great length how years of case and statutory law supported its holding. 116

S.Ct. at 1377-80. Thus, the decision did not create a new rule of law. See Hatch v. State of

Okl., 92 F.3d 1012, 1016 n. 3 (10th Cir. 1996).

       Accordingly, the district court’s October 31, 1996 Order disposing of Petitioner’s

unauthorized second § 2254 petition is VACATED, and the implied application for leave to

file a second petition in the district court is DENIED.




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