                                                                           F IL E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                         PUBLISH
                                                                           October 6, 2006
                     U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
                                   T E N T H C IR C U IT



 U N ITED STA TES O F A M ER ICA ,

                Plaintiff - Appellee ,

          v.                                                No. 06-6071

 ALTON RAY NELSON, JR.,

                Defendant - Appellant .



           A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
                    FO R T H E W . D IST R IC T O F O K L A H O M A
                    (D .C . N O S. 05-C V -101-R and 03-C R -145-R )


Submitted on the brief: *

Alton Ray Nelson, Jr., pro se .

Leslie M . M aye, Assistant United States Attorney, Oklahoma City, Oklahoma, for
Plaintiff - Appellee .


Before H A R T Z, E B E L , and T Y M K O V IC H , Circuit Judges.


H A R T Z, Circuit Judge.



      *
       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.
      Alton Ray Nelson Jr. has filed a notice of appeal from the district court’s

order denying his motion under Fed. R. Civ. P. 15 to amend and supplement his

previously denied motion for a writ of habeas corpus under 28 U.S.C. § 2255.

Because the motion must be treated as a successive motion for relief under

§ 2255, we vacate the district court’s order for lack of subject-matter jurisdiction,

construe M r. Nelson’s notice of appeal and appellate briefs as an implied

application for authorization to file another § 2255 motion, and deny

authorization.

I.    BACKGROUND

      M r. Nelson pleaded guilty in the United States District Court for the

W estern District of Oklahoma to a drug offense under 21 U.S.C. § 841(a)(1).

Judgm ent w as entered on January 30, 2004. He did not file a direct appeal. On

January 27, 2005, however, his attorney filed a motion under § 2255, arguing that

his sentence violated United States v. Booker, 543 U.S. 220 (2005), and

requesting “that the court . . . re-sentence him to a more reasonable sentence.”

R. Doc. 304 at 2. The district court denied the motion on February 1, 2005,

holding that M r. Nelson could obtain no relief under Booker because “new rules

of criminal procedure such as that announced in Booker are applied retroactively

only to cases pending on direct review or cases that are not yet final.” R. Doc.

306 at 1. The judgment in M r. Nelson’s case had become final when he failed to

                                          -2-
file a notice of appeal within 10 days after it had been entered, “long before the

Booker decision was rendered.” Id.

      M r. Nelson did not attempt to appeal the denial of his § 2255 motion. But

10 months later, on December 12, 2005, he filed a pro se pleading entitled

“M otion for Leave to Supplement Record Pursuant to Fed. R. Civ. P. Rule 15(a)

& (b).” R. Doc. 312 at 1. The pleading requested “leave to Amend and

Supplement Pleading of his original Section 2255,” id., and raised three

contentions: (1) that he was denied effective assistance of counsel at sentencing;

(2) that the district court erroneously denied him a downward departure for

acceptance of responsibility; and (3) that the district court violated Booker by

sentencing him on the basis of facts that were not charged in the indictment and

neither admitted by him nor proved to a jury beyond a reasonable doubt. The

district court denied the motion on December 15, ruling that M r. Nelson had not

cited “authority or justification for the Court to set aside” its prior judgment of

February 1, 2005. R. Doc. 313 at 1. M r. Nelson filed a notice of appeal on

February 9, 2006.

II.   D ISC U SSIO N

      A prisoner may not file a “second or successive” motion under § 2255

unless it is “certified . . . by a panel of the appropriate court of appeals to contain

. . . newly discovered evidence . . . or . . . a new rule of constitutional law, made



                                          -3-
retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.” 28 U.S.C. § 2255 ¶ 8.

      Until recently there was occasional doubt concerning what type of pleading

constitutes such a second or successive motion. The Supreme Court clarified the

matter in Gonzalez v. Crosby, 125 S. Ct. 2641 (2005). See Spitznas v. Boone,

No. 05-6236 (10th Cir. filed Sept. 29, 2006) (elaborating on implications of

Gonzalez in § 2254 cases). The opinion specifically addressed motions under

Fed. R. Civ. P. 60(b) after denial of an application under 28 U.S.C. § 2254. The

Court said that whether a postjudgment pleading should be construed as a

successive application depends on whether the pleading (1) seeks relief from the

conviction or sentence or (2) seeks to correct an error in the previously conducted

habeas proceeding itself. A pleading asserting a “new ground for relief” from the

state judgment is advancing a new claim and is therefore treated as a successive

§ 2254 application. Id. at 2648. On the other hand, if the pleading only “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,” then it is not

advancing a new claim and should not be characterized as a successive petition.

Id.

      Gonzalez addressed the interplay of § 2254 and Fed. R. Civ. P. 60(b),

whereas this case involves § 2255 and a motion ostensibly under Fed. R. Civ.



                                         -4-
P. 15. But the same mode of analysis applies. The analysis in Gonzalez rested on

Rule 11 of the Rules Governing Section 2254 Cases, which states, “The Federal

Rules of Civil Procedure, to the extent that they are not inconsistent with these

rules, may be applied, when appropriate, to petitions filed under these rules,” and

Fed. R. Civ. P. 81(a)(2), which states, “These rules are applicable to proceedings

for . . . habeas corpus . . . to the extent that the practice in such proceedings is not

set forth in statutes of the United States, the Rules Governing Section 2254 Cases,

or the Rules Governing Section 2255 Proceedings, and have heretofore conformed

to the practice in civil actions.” See Gonzalez, 125 S. Ct. at 2646. The Supreme

Court held that the restrictions on § 2254 applications set forth in 28 U.S.C.

§ 2244(b) required the limitations it imposed on Rule 60(b) motions. Similarly,

our analysis must rest on Fed. R. Civ. P. 81(a)(2) and Rule 12 of the Rules

Governing Section 2255 Proceedings, which states, “The Federal Rules of Civil

Procedure and the Federal Rules of Criminal Procedure, to the extent that they are

not inconsistent with any statutory provisions or these rules, may be applied in a

proceeding under these rules.”

      To what extent, then, is M r. Nelson’s right to file his motion in district

court limited by the restrictions on successive § 2255 motions? The pertinent

provisions of § 2255 state:

            A prisoner in custody under sentence of a court established by
      Act of Congress claiming the right to be released upon the ground

                                           -5-
      that the sentence w as imposed in violation of the Constitution or laws
      of the United States, or that the court was w ithout jurisdiction to
      impose such sentence, or that the sentence was in excess of the
      maximum authorized by law, or is otherwise subject to collateral
      attack, may move the court which imposed the sentence to vacate, set
      aside or correct the sentence.

             ...

             A second or successive motion must be certified as provided in
      section 2244 by a panel of the appropriate court of appeals to
      contain—
             (1) newly discovered evidence that, if proven and view ed 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 the movant 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.

Under Rule 9 of the Rules Governing Section 2255 Proceedings, “[b]efore

presenting a second or successive motion, the moving party must obtain an order

from the appropriate court of appeals authorizing the district court to consider the

motion, as required by 28 U.S.C. § 2255, para. 8.” In other words, a second or

successive § 2255 motion cannot be filed in district court without approval by a

panel of this court. See United States v. Torres, 282 F.3d 1241, 1246 (10th Cir.

2002); Spitznas, No. 05-6236, slip op. at 2. As a result, if the prisoner’s pleading

must be treated as a second or successive § 2255 motion, the district court does

not even have jurisdiction to deny the relief sought in the pleading.




                                         -6-
      W e begin our analysis by construing M r. Nelson’s motion. He entitles it a

motion to amend under Fed. R. Civ. P. 15. But the motion was filed after

judgment, and we have held that “once judgment is entered, the filing of an

amended complaint is not permissible until judgment is set aside or vacated

pursuant to Fed. R. Civ. P. 59(e) or 60(b).” Tool Box, Inc. v. Ogden City Corp.,

419 F.3d 1084, 1087 (10th Cir. 2005) (internal quotation marks omitted).

Because M r. Nelson was proceeding pro se, we will construe his motion liberally,

see Hammons v. Saffle, 348 F.3d 1250, 1254 (10th Cir. 2003), and treat it as a

combination of a motion to set aside judgment under Rule 60(b) (the motion was

too late to invoke Rule 59(e), see Fed. R. Civ. P. 59(e) (“Any motion to alter or

amend a judgment shall be filed no later than 10 days after entry of the

judgment.”); Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir.

2006)) and a motion to then amend under Rule 15. Thus, our issue echoes the

issue in Gonzalez, with the limitations in § 2255 replacing the limitations in

§ 2254 considered by Gonzalez.

      In our view , to permit the filing of M r. Nelson’s motion in district court

without prior certification from this court— even if somehow the motion could

pass muster under the Federal Rules of Civil Procedure— would be inconsistent

with § 2255’s restrictions on second or successive motions. A § 2255 motion is

one “claiming the right to be released upon the ground that the sentence was



                                         -7-
imposed in violation of the Constitution or laws of the United States, or that the

court was without jurisdiction to impose such sentence, or that the sentence was

in excess of the maximum authorized by law, or is otherwise subject to collateral

attack.” M r. Nelson is undoubtedly seeking to file such a motion. He is not

asserting any procedural error in the disposition of his original habeas motion.

Rather, he wishes to amend his complaint to allege that his sentence was

unlawful. It is the relief sought, not his pleading’s title, that determines whether

the pleading is a § 2255 motion. See Gonzalez, 125 S. Ct. at 2647 (Rule 60(b)

motion seeking leave to present omitted claim of constitutional error is properly

treated as successive habeas petition under § 2254); Torres, 282 F.3d at 1246

(“Indeed, to allow a petition to avoid the bar against successive § 2255 petitions

by simply styling a petition under a different name w ould severely erode the

procedural restraints imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.”). As

stated by the Seventh Circuit, “The reasoning of Gonzalez does not depend on

which rule the prisoner invokes . . . .” United States v. Scott, 414 F.3d 815, 816

(7th Cir. 2005) (characterizing motion for grand jury materials under Fed. R.

Crim. P. 6(e) as a second or successive § 2255 application and applying Gonzalez

rule). And because judgment has been entered on M r. Nelson’s first § 2255

motion, it cannot be disputed that this is a second or successive § 2255 motion.

(W e need not consider whether a prejudgment motion to amend a § 2255 motion



                                          -8-
should ever be treated as a second or successive motion. See Johnson v. United

States, 196 F.3d 802, 804-05 (7th Cir. 1999) (prejudgment motion to amend

petition is not a second or successive petition).)

      W e recognize that we have held that a district court “should only

recharacterize a motion as a § 2255 petition where (1) the petitioner, having been

made aware of the risks associated with recharacterization, assents, or (2) the

district court concludes that the petitioner’s motion can only be considered under

§ 2255 and offers the movant the opportunity to withdraw the motion rather than

have it so recharacterized.” Torres, 282 F.3d at 1245 (internal quotation marks

omitted). This rule allows a prisoner the option of forgoing his motion until later,

so that it does not “prevent [him] from raising a legitimate claim in a subsequent

§ 2255 petition.” Id. at 1246. But we have also held that the reason for this

restriction on recharacterization “does not apply where, as in this case, the

petitioner previously filed a § 2255 petition.” Id. If the prisoner has filed once,

any future motion will be subject to the same constraints whether it is a second

§ 2255 motion or a third.

      Because M r. Nelson’s pleading constituted a second motion for habeas

relief under § 2255, the district court lacked subject-matter jurisdiction over the

matter. See id. (construing petition for writs of error coram nobis and audita

querela as successive § 2255 motion and holding that the district court therefore



                                          -9-
lacked subject-matter jurisdiction over the claim). W e therefore vacate its ruling.

W e will, however, treat M r. Nelson’s notice of appeal and appellate brief as an

implied application to this court for leave to file a second § 2255 motion. See id.

But he has failed to satisfy the requirements for a second motion. He alleges

neither newly discovered evidence nor a new rule of law that applies

retroactively. See § 2255 ¶ 8. W e deny leave to file a second motion.

III.   C O N C L U SIO N

       W e V ACATE the judgment of the district court and DENY M r. Nelson’s

im plied application for leave to file a second § 2255 motion. W e also DENY

M r. Nelson’s motion to proceed in form a pauperis.




                                         -10-
