                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        August 25, 2011
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT



 STEVEN ORLANDO TITSWORTH,

           Petitioner-Appellant,
 v.                                                            No. 11-7039
 MIKE MULLIN, Warden,                             (D.C. No. 6:CV-08-00032-RAW-KEW)
                                                               (E.D. Okla.)
           Respondent-Appellee.



                                         ORDER*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


       Petitioner Steven Titsworth, a state prisoner appearing pro se, appeals from the

district court’s denial of his Fed. R. Civ. P. 60(b) motion in a 28 U.S.C. § 2254

proceeding. Because Titsworth’s Rule 60(b) motion is properly characterized as an

attempt to file a second or successive habeas petition, we vacate the district court’s order

for lack of jurisdiction, construe Titsworth’s appeal as an application to file a second or

successive habeas petition, and deny the application.

                                              I

       The history of Titsworth’s offense, conviction, and prior post-conviction



       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
proceedings is set forth in our order denying a certificate of appealability (COA) in

Titsworth v. Mullin, 415 F. App’x 28 (10th Cir. 2011). Titsworth was convicted in 2004

of possession of cocaine and larceny of merchandise. Due to his criminal history,

Titsworth was sentenced to seventeen years’ imprisonment on the drug offense and, after

post-conviction modification by the Oklahoma Court of Criminal Appeals (OCCA), one

year’s imprisonment on the larceny offense. Titsworth filed a habeas petition in the

United States District Court for the Eastern District of Oklahoma, raising the following

claims: (i) excessive and illegal sentences and/or insufficiency of the evidence; (ii)

ineffective assistance of trial and appellate counsel; (iii) improper enhancement of his

drug possession sentence; (iv) illegal warrantless arrest; (v) improper jury instructions

during the punishment phase of his trial; (vi) denial of the right to have the jury that

convicted him set his punishment; (vii) divergence between the jury’s verdict and the

one-year sentence imposed by the OCCA; and (viii) denial of the right to examine

evidence. See ROA, Vol. 1 at 589-90, 604. The district court denied claims (i) - (iii) on

the merits, denied claims (iv) - (viii) because they were unexhausted and procedurally

barred, and denied a COA. This court denied Titsworth’s application for a COA.

Titsworth, 415 F. App’x 28.

       Titsworth then filed a Fed. R. Civ. P. 60(b) motion in this court and in the district

court, arguing that both courts had resolved his claims incorrectly. ROA, Vol. 1 at 654.

This court informed Titsworth by letter that it had already issued an order denying his

request for a COA, that the period for seeking rehearing had lapsed, “[t]he case [he]

                                              2
referenced is fully at end,” Rule 60(b) has no application to circuit courts, and that this

court could not accept his filing and would take no action on it. Id. at 700. The district

court subsequently denied Titsworth’s Rule 60(b) motion on the merits. Titsworth then

filed a combined opening brief and application for COA in this court, arguing that the

district court failed to address all the issues raised in his Rule 60(b) motion and that this

court and the district court resolved his claims incorrectly.

                                               II

       Federal Rule of Civil Procedure 60(b) allows a party to seek relief from a final

judgment under a limited set of circumstances, including mistake, newly discovered

evidence, fraud, or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). A Rule

60(b) motion filed in a § 2254 proceeding may be a “true” Rule 60(b) motion or, in fact, a

second or successive habeas petition filed under the auspices of Rule 60(b). See

Gonzalez v. Crosby, 545 U.S. 524, 530-33 (2005). The Antiterrorism and Effective

Death Penalty Act places strict limits upon a prisoner’s ability to file a second or

successive habeas petition, including a requirement that the petitioner obtain

authorization from this court before such a petition may be filed. See 28 U.S.C. §

2244(b)(3).

       A Rule 60(b) motion is a second or successive habeas petition “if it in substance or

effect asserts or reasserts a federal basis for relief from the petitioner’s underlying

conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). For example, a

motion “seeking vindication of a habeas claim by challenging the habeas court’s previous

                                               3
ruling on the merits of that claim,” is a second or successive habeas petition. Id. at 1216

(quotation omitted). This is exactly what Titsworth seeks in his Rule 60(b) motion. He

argues that the district court reached incorrect conclusions on the merits of his claims.1

Therefore, his motion is not a “true” Rule 60(b) motion but, rather, a second or successive

habeas petition.

        Because Titsworth did not obtain authorization from this court prior to filing his

motion, the district court should have dismissed it for lack of jurisdiction or transferred it

to this court. Id. at 1217. If, as in this case, a district court erroneously entertains a

second or successive habeas petition styled as a Rule 60(b) motion and denies it on the

merits, “we will vacate the district court’s order for lack of jurisdiction and construe the

petitioner’s appeal as an application to file a second or successive habeas petition.” Id. at

1219.

        Having construed Titsworth’s appeal as an application to file a second or

successive habeas petition, we shall consider the merits of such application. We may

authorize the filing of a second or successive habeas petition only if the application makes

a prima facie showing that the requirements for granting a second or successive habeas

petition are satisfied. 28 U.S.C. § 2244(b)(3)(C). “A claim presented in a second or

successive habeas corpus application under section 2254 that was presented in a prior

application shall be dismissed.” 28 U.S.C. § 2244(b)(1). Each claim raised in


        1
        Titsworth does not challenge the district court’s conclusions that several of his
claims are procedurally barred.

                                                4
Titsworth’s Rule 60(b) motion was previously raised in his habeas petition. Therefore, he

has not made a prima facie showing that the requirements for granting a second or

successive habeas petition are satisfied.

                                              III

       The order of the district court is VACATED for lack of jurisdiction. Titsworth’s

Fed. R. Civ. P. 60(b) motion is construed as an application to file a second or successive

habeas petition, and such application is DENIED. This denial is not appealable and “shall

not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. §

2244(b)(3)(E).


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Chief Judge




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