                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       April 5, 2007
                           FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court



 RO BERT SCHW AR TZ,

              Petitioner - A ppellant,
                                                        No. 06-1396
 v.                                        (D.C. No. 03-CV -1423-ZLW -CB S)
                                                       (D. Colorado)
 DONICE NEAL, W arden of the
 Arrowhead Correctional Facility;
 A TTO RN EY G EN ER AL O F THE
 STA TE OF C OLO RA D O ,

              Respondents - Appellees.



                           OR D ER AND JUDGM ENT *


Before K ELLY, BRISCO E, and G O RSUCH , Circuit Judges.


      Robert Schwartz, a state prisoner proceeding pro se, appeals the district

court orders denying his motion to reopen his prior 28 U.S.C. § 2254 petition on

the non-adjudicated claims and denying his motion to reconsider. W e vacate the

district court orders, construe Petitioner Schwartz’s notice of appeal and appellate


      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
brief as an implied application for authorization to file another § 2254 petition,

and deny authorization.

      In 1993, Petitioner Schwartz pleaded guilty in state court to three counts of

sexual assault on a child by one in a position of trust, and three counts of

aggravated incest. He was sentenced to thirty years’ imprisonment. On direct

appeal, his sentence was affirmed.

      In 2003, he filed his first § 2254 petition for purposes of the A ntiterrorism

and Effective Death Penalty Act (“AEDPA ”) raising thirteen claims, such as the

denial of effective assistance of trial and appellate counsel, and the

involuntariness of his guilty plea because the trial court failed to give him a

proper Colo. R. Crim. R. 11 advisement, he was under the influence of drugs at

the time of his plea, the trial court erred by allowing an amendment to the

charges, he was improperly charged as one in a position of trust, and the charging

statutes were inadequate. The magistrate judge issued a recommendation finding

that none of Petitioner’s claims constituted a basis for habeas relief. The district

court adopted the magistrate judge’s recommendation and denied the § 2254

petition. In so doing, the district court rejected Petitioner’s constitutional

challenge to his sentence and denied his remaining twelve claims based on state

procedural default grounds. See Schwartz v. Neal, No. 03-CV-1423 (D. Colo.

Aug. 15, 2005) (unpublished). On appeal, this court denied a certificate of

appealability and dismissed. See Schwartz v. Neal, No. 05-1418 (10th Cir. M ay

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18, 2006) (unpublished order).

      On July 21, 2006, approximately eleven months after the district court

denied his first § 2254 petition, Petitioner Schwartz filed a motion under Fed. R.

Civ. P. 60(b) to reopen. Petitioner sought the district court to consider issues that

he claimed were not previously considered or adjudicated by the district court

during his first § 2254 petition. In particular, he argued that he did not receive

effective assistance of appellate or post-conviction counsel, and that he was not

charged with, adjudged of, or pleaded guilty to sexual assault on a child by one in

a position of trust or to aggravated incest. In a July 27, 2006 Order, the district

court denied Petitioner’s motion to reopen. In an August 17, 2006 Order, the

court denied his motion to reconsider. This appeal followed. 1

      A post-judgment motion must be treated as a second or successive petition

and certified by an appellate panel if it asserts or reasserts a substantive claim to

set aside a movant’s criminal conviction. See Gonzalez v. Crosby, 545 U.S. 524,

530-31 (2005) (deciding the extent to which a Fed. R. Civ. P. 60(b) motion filed



      1
         On July 27, 2006, Robert Schwartz filed a second § 2254 petition in the
district court, which was assigned No. 06-CV-1456. Lacking subject matter
jurisdiction, the district court transferred the second § 2254 petition to this court
pursuant to Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997)
(requiring transfer by district court of unauthorized second or successive petitions
to this court). After transfer, Schwartz filed a motion for authorization to file a
second or successive § 2254 petition, which was denied for failing to satisfy
either of the AEDPA criteria in 28 U.S.C. § 2244(b)(2). See Schwartz v. Keith,
No. 06-1411 (10th Cir. Nov. 13, 2006) (unpublished order).


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in a § 2254 proceeding should be considered a second or successive habeas

petition); see also Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006)

(“[u]nder Gonzalez, a 60(b) motion is a second or successive petition if it in

substance or effect asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction.”).

      Petitioner Schwartz’s motion to reopen constituted an unauthorized second

or successive § 2254 petition under the AEDPA . The motion did not attack the

integrity of the first § 2254 proceedings, but rather asserted substantive claims

challenging the 1993 criminal conviction. Consequently, Petitioner was required

to comply with the relevant provisions of the AEDPA and obtain prior

authorization from this court before filing his unauthorized § 2254 petition in the

district court on July 21, 2006. He failed to obtain this authorization. See 28

U.S.C. § 2244(b)(3)(A). Therefore, the district court lacked subject matter

jurisdiction, and the orders denying the unauthorized § 2254 petition and the

motion to reconsider must be vacated.

      Nonetheless, 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 authorization

to file a second or successive § 2254 petition. Petitioner reasserts on appeal the

claims raised in his motion to reopen as w ell as such claims that: issues raised in

his state court post-conviction proceedings and in his first § 2254 petition were

never ruled upon by state or federal courts on the merits; his right to self

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representation was denied because his pro se pleadings and filings were not

considered and ruled on by the courts; the district court’s dismissal with prejudice

of his first § 2254 petition violated his due process and equal protection rights;

and he is entitled to another advisement under Colo. R. Crim. P. 11.

      W e have thoroughly reviewed the implied application and conclude that

Petitioner Schwartz has failed to make the prima facie showing required by either

of the AEDPA criteria in 28 U.S.C. § 2244(b)(2). Petitioner’s claims are not

based on a new rule of constitutional law made retroactive to cases on collateral

review by the United States Supreme Court that was previously unavailable, id. §

2244(b)(2)(A), or on facts previously undiscoverable through the exercise of due

diligence that would establish by clear and convincing evidence that he was not

guilty of the offenses, id. § 2244(b)(2)(B).

      Finally, contrary to Petitioner’s assertions, the twelve claims raised in his

first § 2254 petition that were denied based on state procedural default grounds

“constitute[d] a disposition on the merits and thus render[ed] a subsequent § 2254

petition or § 2255 motion ‘second or successive’ for purposes of the AEDPA .”

Carter v. United States, 150 F.3d 202, 205-06 (2nd Cir. 1998) (per curiam); see

Henderson v. Lam pert, 396 F.3d 1049, 1053 (9th Cir.), cert. denied, 126 S.Ct. 199

(2005) (same); cf. Hawkins v. Evans, 64 F.3d 543, 547 (10th cir. 1995)

(concluding, pre-AEDPA, that denial of claim due to procedural default is a

determination on the merits in evaluating whether a second habeas petition is

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successive).

      Accordingly, the district court orders are VACATED. The implied

application for authorization to file a second or successive § 2254 petition is

DENIED. The motion to proceed in form a pauperis is GR ANTED . The

mandate shall issue forthwith.



                                       Entered for the Court


                                       Per Curiam




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