                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JAN 28 2002
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    PATRICK SOKOLOSKY,

                  Petitioner-Appellant,

    v.                                                    No. 01-7026
                                                    (D.C. No. 99-CV-357-S)
    JAMES SAFFLE, Warden,                                 (E.D. Okla.)

                  Respondent-Appellee.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and          BRORBY ,
Senior 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.




*
      This order and judgment is not binding precedent, except under the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.
       Petitioner-appellant Patrick Sokolosky appeals from the district court’s

order denying his petition for a writ of habeas corpus, brought pursuant to

28 U.S.C. § 2254. At the outset, we note a jurisdictional problem with this

appeal. The district court entered its order denying Sokolosky’s petition for writ

of habeas corpus on December 8, 2000. Sokolosky did not file a notice of appeal

within thirty days of the entry of that order, as required by Fed. R. App. P.

4(a)(1)(A). He did, however, file a “motion to set aside judgment” on December

28, 2000. Since this motion was not filed within ten days of the entry of

judgment, we construe it as a Fed. R. Civ. P. 60(b) motion,        Van Skiver v. United

States , 952 F.2d 1241, 1243 (10th Cir. 1991), which did not toll the time for filing

a notice of appeal from the underlying judgment.          See Fed. R. App. P. 4(a)(4).

       On February 12, 2001, the district court entered an order denying the 60(b)

motion. Sokolosky filed his notice of appeal on March 1, 2001, within thirty days

of the entry of this latter order.   1
                                         This notice of appeal therefore at most raises for

our review the order denying Sokolosky’s 60(b) motion, and not the original order

denying his petition for writ of habeas corpus.         Van Skiver , 952 F.2d at 1243.




1
      To further complicate matters, Sokolosky also filed on March 1, 2001,
a motion for clarification of the February 12, 2001 order. The district court
denied this motion on March 23, 2001, and Sokolosky did not take appeal from
the order denying the motion for clarification.

                                                -2-
       Rule 60(b) motions cannot be used to circumvent the restrictions imposed

on successive habeas petitions.    See Lopez v. Douglas , 141 F.3d 974, 975

(10th Cir. 1998). Even if Mr. Sokolosky’s 60(b) motion is not construed as an

attempt to file a successive petition, he fails to show that the district court abused

its discretion by denying the motion.   Servants of Paraclete v. Does , 204 F.3d

1005, 1009 (10th Cir. 2000) (“We review the district court’s denial of

a Rule 60(b) motion for abuse of discretion.”).

       We therefore DISMISS Sokolosky’s appeal from the district court’s order

denying his habeas petition for lack of appellate jurisdiction, and AFFIRM the

denial of his 60(b) motion. Sokolosky’s “Request for Directive to District Court,”

filed April 16, 2001, is DENIED. His “Motion to Deny Consideration of

Appellee’s Brief” is DENIED as moot. His request for leave to proceed IFP is

DENIED as moot, since the district court previously granted IFP for purposes

of this appeal.


                                                      Entered for the Court



                                                      Stephanie K. Seymour
                                                      Circuit Judge




                                          -3-
