                                                                    FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 May 18, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                 Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                      No. 08-3341
 v.                                          (D.C. No. 03-CR-20085-JWL-2)
                                                        (D. Kan.)
 CARLOS GASCA, also known as
 Chino,

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Defendant-Appellant Carlos Gasca, appearing pro se, seeks to have this

court reopen his previously unsuccessful habeas corpus action. Mr. Gasca pled

guilty on August 12, 2004 to one count of conspiracy to distribute and possess

with intent to distribute methamphetamine in violation of 21 U.S.C. § 846. 1 R.

Doc. 205 at 1. The district court sentenced him to 360 months’ imprisonment

after engaging in a colloquy with Mr. Gasca to determine that his plea was

knowing and voluntary. 1 R. Doc. 205 at 2; 2 R. Doc. 247 at 4-10. Mr. Gasca

appealed, but we dismissed the appeal and granted the government’s motion to

enforce its plea agreement with Mr. Gasca, which included a waiver of rights to
appeal and collaterally attack his sentence. 1 R. Doc. 230. Mr. Gasca then filed a

petition for habeas relief under 28 U.S.C. § 2255, which the district court denied.

1 R. Doc. 250. Mr. Gasca sought to appeal that order and we denied him a

certificate of appealability (“COA”) and dismissed his appeal. United States v.

Gasca, 236 F. App’x 459 (10th Cir. 2007).

      Mr. Gasca then filed a Fed. R. Civ. P. 60(b) motion, requesting that the

district court reopen his prior habeas action. 1 R. Doc. 278. The district court

construed the “bulk of the claims” as a second or successive § 2255 motion

because they addressed the merits of his prior § 2255 motion, but treated Mr.

Gasca’s arguments that (1) he was prejudiced by his attorney’s suspension from

practicing law, and (2) entitled to an evidentiary hearing on his § 2255 motion as

a “true” Rule 60(b) challenge. United States v. Gasca, 2008 WL 5046343, at *2

(D. Kan. 2008). The district court dismissed the claims it construed as a second

§ 2255 motion and denied the “true” Rule 60(b) motion. Id. at *2-4.

      Mr. Gasca now attempts to appeal from the denial of his Rule 60(b) motion.

To do so, he needs a COA. Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th Cir.

2006). Because we find that Mr. Gasca has not made a “substantial showing of

the denial of a constitutional right” regarding that portion of the order denying the

“true” Rule 60(b) motion, we deny a COA. 28 U.S.C. § 2253(c)(2). We also

vacate the district court’s order insofar it treats certain § 2255 claims as falling

under Rule 60(b).

                                          -2-
                                       Discussion

      We have previously set forth the rules governing appeals from Rule 60(b)

motions in the context of habeas petitions. When faced with a Rule 60(b) motion

filed in response to the denial of a petition for habeas relief, the district court

must first determine whether the motion “should be treated as a second or

successive habeas petition [or whether] it should be treated as a ‘true’ 60(b)

motion.” Spitznas, 464 F.3d at 1215. Under Gonzalez v. Crosby, 545 U.S. 524

(2005), a Rule 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.” Spitznas, 464 F.3d at 1215. “Conversely, it is a ‘true’

60(b) motion if it . . . challenges only a procedural ruling of the habeas court

which precluded a merits determination of the habeas application.” Id. at 1215-

16.

      Here, we are persuaded that the entirety of the purported Rule 60(b) motion

is actually a second or successive habeas petition. It is clear from Mr. Gasca’s

brief that he is simply attacking the court’s previous resolution of his claim on the

merits—that he received ineffective assistance and that the plea and waiver were

not knowing and intelligent. This is an attack on the merits, as it raises the issue

of whether grounds exist entitling Mr. Gasca to habeas corpus relief from his

underlying conviction. See Gonzalez, 545 U.S at 532 & n.4; Spitznas, 464 F.3d

at 1215.

                                           -3-
      Mr. Gasca may not present these claims in the district court unless he

obtains authorization to do so from this court in accordance with 28 U.S.C. §

2255(h). See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). Because Mr.

Gasca never obtained such authorization, the district court lacked jurisdiction

over the entire matter. See United States v. Nelson, 465 F.3d 1145, 1149 (10th

Cir. 2006) (“[I]f the prisoner’s pleading must be treated as a second or successive

§ 2255 motion, the district court does not even have jurisdiction to deny the relief

sought in the pleading.”). Accordingly, we VACATE the district court’s order

insofar as it treats the motion as falling under Rule 60(b), and DENY a COA. 1

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




      1
       None of Mr. Gasca’s claims meet the authorization standards set forth in
§ 2255(h) for a second or successive petition; accordingly, there is no basis for
remanding the matter to the district court. See In re Cline, 531 F.3d at 1253.

                                         -4-
