                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 10 2003
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

RUDY PHIL JAQUEZ,

          Petitioner - Appellant,
                                                       No. 01-6416
v.                                               D.C. No. CIV-99-1982-M
                                                    (W.D. Oklahoma)
STATE OF OKLAHOMA,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


      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.

      In 1998, appellant Rudy P. Jaquez, Jr. entered a plea of nolo contendere to

an Oklahoma state charge of first degree manslaughter. The federal habeas

corpus petition which Jaquez filed pursuant to 28 U.S.C. § 2254 was denied by


      *
       This order and judgment is not binding precedent, except under the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.
the district court. On February 23, 2001, this court denied Jaquez’s request for a

certificate of appealability and dismissed his appeal.    See Jaquez v. Oklahoma ,

No. 00-6272, 2001 WL 179813 (10th Cir. Feb. 23, 2001) (unpublished

disposition). On September 19, 2001, Jaquez        filed a “Motion to Set Aside

Default Rule 60 b-3-4-5-6” in federal district court. The district court construed

Jaquez’s motion as requesting relief from its order denying his § 2254 petition

and denied the motion. Jaquez seeks to appeal that decision.

       This court has held that post-judgment, Rule 60(b) motions filed in federal

habeas proceedings are second or successive habeas petitions under the

Antiterrorism and Effective Death Penalty Act of 1996. See Lopez v. Douglas,

141 F.3d 974, 975 (10th Cir. 1998) (“Rule 60(b) cannot be used to circumvent

restraints on successive habeas petitions.”). Successive habeas petitions cannot

be filed in district court until the petitioner “move[s] in the appropriate court of

appeals for an order authorizing the district court to consider the application.” 28

U.S.C. § 2244(b)(3)(A). Because Jaquez failed to obtain authorization from this

court before filing his Rule 60(b) motion, the district court lacked jurisdiction to




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consider the motion.   1
                           Accordingly, we must vacate the district court’s order

denying the motion.

       Because we conclude that Jaquez’s Rule 60(b) motion is a successive §

2254 petition, we construe Jaquez’s application for a certificate of appealability,

his appellate brief, and his related motions and miscellaneous filings as an

application requesting authorization to file a second or successive habeas

petition. See Pease v. Klinger , 115 F.3d 763, 764 (10th Cir. 1997). In order to

obtain authorization to file a second § 2254 petition, Jaquez must make the

requisite showing under 28 U.S.C. § 2244(b)(2)(A), (B). Our review of Jaquez’s

implied application leads to the conclusion that he has failed to make the prima

facie showing necessary for filing a second or successive § 2254 petition.

Accordingly, the district court’s order dated October 22, 2001, denying Jaquez’s

unauthorized § 2254 petition is     vacated and Jaquez’s implied application for

leave to file a second or successive § 2254 petition is   denied . Jaquez is

reminded that this court’s denial of authorization to file a successive habeas

corpus petition cannot be subject to a petition for rehearing or a petition for a


       1
        When the motion was filed without the required appellate court
authorization, it should have been transferred to this court. See Coleman v.
United States, 106 F.3d 339, 341 (10th Cir. 1997) (“[W]hen a second or
successive petition for habeas corpus relief under § 2254 . . . is filed in the
district court without the required authorization by this court, the district court
should transfer the petition or motion to this court in the interest of justice
pursuant to [28 U.S.C.] § 1631.”).

                                             -3-
writ of certiorari.   See 28 U.S.C. § 2244(b)(3)(E). In light of this court’s

construction of Jaquez’s filings as a request to file a second or successive § 2254

petition, his motion to proceed   in forma pauperis is denied as moot.

                                          ENTERED FOR THE COURT



                                          Michael R. Murphy
                                          Circuit Judge




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