                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 18 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-7044
                                                   D.C. No. 02-CV-86-S
v.
                                                      and 90-CR-52-S
                                                     (E. D. Oklahoma)
GEORGE THOMAS PRATT,

          Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this court 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.




      *
       This order and judgment is not binding precedent, except under the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.
      On February 19, 2002, Appellant George Thomas Pratt filed a motion for

relief from a judgment of criminal conviction in federal district court. The

motion was ostensibly filed pursuant to Rule 60(b)(3) of the Federal Rules of

Civil Procedure. Noting that Pratt had previously filed a motion pursuant to 28

U.S.C. § 2255 and recognizing that “Rule 60(b) cannot be used to circumvent

restraints on successive habeas petitions,” the district court construed Pratt’s

motion as an application to file a second or successive habeas petition and

transferred it to this court pursuant to 28 U.S.C. § 1631. Lopez v. Douglas, 141

F.3d 974, 975 (10th Cir. 1998). Pratt brought this appeal, challenging the district

court’s determination that his Rule 60(b)(3) motion was an application to file a

second or successive habeas petition.

      On May 1, 2002, this court, acting on the matter transferred by the district

court, denied Pratt authorization to file a second or successive habeas petition.

Inherent in our denial of such authorization is a determination that the district

court’s transfer of Pratt’s motion was proper. Accordingly, this appeal is

dismissed as moot.

      Pratt has also requested permission from this court to proceed in forma

pauperis on appeal. Pratt’s request, however, was also made before the district




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court and that court granted such permission. Consequently, Pratt’s motion to

proceed in forma pauperis filed with this court is denied as moot.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




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