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

                            FOR THE TENTH CIRCUIT                      November 12, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                          No. 14-1224
                                                (D.C. Nos. 1:03-CR-00415-REB-1 &
WENDEL ROBERT WARDELL, JR.,                            1:09-CV-02374-REB)
                                                             (D. Colo.)
             Defendant - Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, MATHESON, and BACHARACH, Circuit Judges.


      Wendel Robert Wardell, Jr., a federal prisoner proceeding pro se, seeks to

appeal the district court’s dismissal of his Fed. R. Civ. P. 60(b)(6) motion as an

unauthorized second or successive 28 U.S.C. § 2255 motion. See 28 U.S.C.

§ 2255(h) (placing restrictions on second or successive § 2255 motions and requiring

circuit court authorization to proceed in district court). We deny a certificate of

appealability (COA) and dismiss this proceeding.

      Mr. Wardell was convicted by a jury in 2005 of several tax-fraud offenses and

subsequently sentenced to ninety-six months’ imprisonment. This court affirmed his

*
       This order is not binding precedent except under the doctrines of law of the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.
conviction and sentence on direct appeal. United States v. Wardell, 218 F. App’x

695 (10th Cir. 2007). He then filed in district court a § 2255 motion in which he

raised numerous claims of ineffective assistance of trial and appellate counsel. The

district court denied relief in a lengthy, well-reasoned order that examined each of

Mr. Wardell’s fourteen claims of error. While Mr. Wardell’s appeal from the district

court’s denial of § 2255 relief was pending in this court, he filed a Rule 60(b)(6)

motion in district court to set aside the court’s order denying § 2255 relief. This

court upheld the district court’s denial of § 2255 relief to Mr. Wardell and denied his

request for a COA. United States v. Wardell, 564 F. App’x 418 (10th Cir. 2014).

Shortly thereafter, the district court dismissed Mr. Wardell’s Rule 60(b)(6) motion

for lack of jurisdiction on the grounds that he was attempting to assert unauthorized

second or successive § 2255 claims without having obtained authorization from this

court to do so.

      Mr. Wardell now requests a COA from this court. See United States v.

Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (“[T]he district court’s dismissal of an

unauthorized § 2255 motion is a ‘final order in a proceeding under section 2255’

such that [28 U.S.C.] § 2253 requires petitioner to obtain a COA before he or she

may appeal.”). To obtain a COA, Mr. Wardell must show both “that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,


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484 (2000). This court must determine whether Mr. Wardell’s post-conviction

motion should be treated as a second or successive § 2255 motion, and therefore

subject to the authorization requirements of § 2255(h). It is subject to the

authorization requirements of 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. See Gonzalez v. Crosby, 545 U.S. 524, 531-32, 538 (2005); United States

v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). But authorization under § 2255(h)

is not required “when a Rule 60(b) motion 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.” Gonzalez, 545 U.S. at 532.

      It is beyond cavil that the district court’s determination that Mr. Wardell’s

Rule 60(b)(6) motion should be viewed as a § 2255 motion was correct. First,

Mr. Wardell’s motion was devoted primarily to re-arguing the issues he raised in his

§ 2255 motion. See Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006).

Second, his allegations of government misconduct or fraud were not linked to the

integrity of the § 2255 proceeding itself, but instead attacked the integrity of the

underlying trial. And last, his request to present newly discovered evidence was not

the proper subject of a Rule 60(b) motion “because [it] assert[ed] or reassert[ed] a

federal basis for relief from the underlying conviction.” Spitznas, 464 F.3d at 1216.

      Mr. Wardell’s application for a COA is denied and this matter is dismissed.

We also deny Mr. Wardell’s motion to proceed on appeal without prepayment of


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costs or fees because he has failed to advance “a reasoned, nonfrivolous argument on

the law and facts in support of the issues raised on appeal.” DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).


                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




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