                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         February 27, 2006
                                   TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                            Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 05-3371
v.                                                    (District of Kansas)
                                               (D.C. No. 98-CR-10079-03-WEB)
CARLOS L. CANEDO, a/k/a Charlie,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.


      Carlos Canedo appeals the district court’s dismissal of his motion

nominally brought pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

The district court dismissed Canedo’s Rule 60(b) motion for lack of jurisdiction,

concluding it was actually a second or successive 28 U.S.C. § 2255 motion.

Accordingly, the district court ruled that absent precertification by this court it

was precluded from addressing Canedo’s motion on the merits. 28 U.S.C. §


      *
       This order and judgment is not binding precedent, except under the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.
2244(b)(3)(A) (providing that before a second or successive habeas petition is

filed in district court, the petitioner must apply to the court of appeals for an

order authorizing the district court to consider the petition); id. § 2255 para. 8.

(adopting the requirements in § 2244 for second or successive § 2255 motions).

We affirm the district court’s dismissal of Canedo’s petition for lack of

jurisdiction. Furthermore, treating Canedo’s appellate filings as an implied

request to file a second or successive § 2255 motion, we deny his request because

the Supreme Court has not made either Crawford v. Washington, 541 U.S. 36

(2004), or United States v. Booker, 125 S. Ct. 738 (2005), retroactively applicable

on collateral review. 28 U.S.C. § 2255 para. 8

      On appeal, Canedo asserts the district court erred in recharacterizing his

motion as a second or successive § 2255 motion. In particular, Canedo asserts the

district court recharacterized his motion solely on the basis of this court’s

decision in Lopez v. Douglas, 141 F.3d 974 (10th Cir. 1998), and that Lopez is no

longer good law in the wake of the Supreme Court’s decision in Gonzales v.

Crosby, 125 S. Ct. 2641 (2005).

      In Lopez, this court set out the following categorical rule: a Rule 60(b)

motion seeking to vacate a prior judgment denying a § 2254 petition was a second

or successive habeas petition subject to the preauthorization provisions of the

AEDPA. Lopez, 141 F.3d at 975-76. The district court lacked jurisdiction to


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decide such motions on the merits unless the petitioner first obtained

authorization from this court to file the habeas petition in district court. Id. In

Gonzalez, however, the Supreme Court rejected the categorical approach

embodied in Lopez and, instead, adopted a nuanced approach to the question

whether any particular Rule 60(b) motion seeking to vacate a prior denial of

habeas relief is a second or successive habeas corpus petition. Gonzalez, 125 S.

Ct. 2651. Under the rule set out in Gonzalez, a Rule 60(b) motion seeking to

raise what would traditionally be considered a claim for habeas relief is a second

or successive habeas petition. Id. at 2647-48. When, however, “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,” the

motion is not successive and is not subject to the screening requirements set out

in 28 U.S.C. § 2244. Gonzalez, 125 S. Ct. at 2648.

      Canedo is wrong in asserting the district court recharacterized his motion as

a second or successive § 2255 motion on the basis of Lopez. Although the district

court did cite to Lopez, it did so solely for the unremarkable proposition that

“Rule 60(b) ‘cannot be used to circumvent [the statutory] restraints on successive

habeas petitions.’” Dist. Court Order at 3 (quoting Lopez, 141 F.3d at 975). In

deciding that Canedo’s Rule 60(b) motion was, in reality, a second or successive

§ 2255 motion, the district court relied exclusively on Gonzalez. As noted by the


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district court, Canedo’s motion asserted his conviction was invalid under

Crawford because it was based on hearsay improperly admitted at trial and that

his sentence was invalid because it was based, in part, on judicial fact-finding in

violation of Booker. Canedo contended below and continues to contend on

appeal, that his Crawford and Booker claims merely attacked the integrity of his

trial. As the district court quite correctly noted, however, Canedo’s motion

asserted an entitlement to relief from his conviction on the basis of a change in

the substantive law regarding the admission of hearsay at trial and from his

sentence based on the propriety of judicial fact-finding at sentencing under the

regime set out in the United States Sentencing Guidelines. In Gonzalez, the

Supreme Court concluded that such claims were habeas claims not properly

brought in a 60(b) motion:

      a motion might contend that a subsequent change in substantive law
      is a “reason justifying relief,” Fed. Rule Civ. Proc. 60(b)(6), from the
      previous denial of a claim. E.g., Dunlap v. Litscher, 301 F.3d 873,
      876 (C.A.7 2002). Virtually every Court of Appeals to consider the
      question has held that such a pleading, although labeled a Rule 60(b)
      motion, is in substance a successive habeas petition and should be
      treated accordingly. E.g., Dunlap, supra, at 876.
             We think those holdings are correct. . . . [A] Rule 60(b)
      motion based on a purported change in the substantive law governing
      the claim could be used to circumvent § 2244(b)(2)(A)’s dictate that
      the only new law on which a successive petition may rely is “a new
      rule of constitutional law, made retroactive to cases on collateral
      review by the Supreme Court, that was previously unavailable.” In
      addition to the substantive conflict with AEDPA standards, . . . use
      of Rule 60(b) [in such a circumstance] would impermissibly
      circumvent the requirement that a successive habeas petition be

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      precertified by the court of appeals as falling within an exception to
      the successive-petition bar. § 2244(b)(3).

Gonzalez, 125 S. Ct. at 2647.

      Despite Canedo’s protestations to the contrary, his motion asserted that his

previous § 2255 motion was wrongly decided on the merits based on the Supreme

Court’s subsequent decision in Crawford and Booker. As Gonzalez makes clear,

these are habeas claims not properly brought in a Rule 60(b) motion. Instead,

before bringing such claims, Canedo must obtain precertification from this court

pursuant to the terms of § 2255 para. 8. Accordingly, the district court’s

dismissal of Canedo’s motion for lack is jurisdiction is hereby AFFIRMED.

      Alternatively, treating Canedo’s appellate filings as an implied request to

file a second or successive § 2255 motion, we DENY the request because the

Supreme Court has not made either Crawford or Booker retroactive to cases on

collateral appeal. Cf. Brown v. Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004)

(holding that Crawford is not retroactively applicable to an initial habeas

petition); United States v. Bellamy, 411 F.3d 1182, 1186 (10th Cir. 2005) (holding

that Booker does not apply retroactively to initial habeas petitions).

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge


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