                                                                                     FILED
                                                                         United States Court of Appeals
                         UNITED STATES COURT OF APPEALS                          Tenth Circuit

                               FOR THE TENTH CIRCUIT                          January 23, 2019
                           _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                            No. 18-6191
                                                     (D.C. Nos. 5:16-CV-00082-HE &
 TAWNY BRYCE SAVAGE,                                      5:14-CR-00158-HE-1)
                                                              (W.D. Okla.)
          Defendant - Appellant.
                         _________________________________

               ORDER DENYING CERTIFICATE OF APPEALABILITY
                      _________________________________

Before BRISCOE, KELLY, and O’BRIEN, Circuit Judges.
                  _________________________________

       Tawny Bryce Savage, a federal prisoner appearing pro se, filed a Fed. R. Civ. P.

60(b) motion to “correct her sentence.” R., Vol. II at 284. The district court construed

the Rule 60(b) motion as an unauthorized second or successive 28 U.S.C. § 2255 motion

and dismissed it for lack of jurisdiction. To appeal from that decision, Ms. Savage must

obtain a certificate of appealability (COA). See United States v. Harper, 545 F.3d 1230,

1233 (10th Cir. 2008). For the reasons that follow, we deny a COA and dismiss the

matter.




       
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Ms. Savage was convicted of three criminal charges in two cases—in the first case

she was convicted of possession with intent to distribute methamphetamine and

possessing a firearm after conviction of a felony. In the second case, she was convicted

of theft of government funds. She was sentenced to a total term of imprisonment of

78 months. The convictions were based on guilty pleas pursuant to plea agreements.

She did appeal, but later withdrew her appeals after the government moved to enforce the

appeal waivers in her plea agreements. She then filed motions to vacate or correct her

sentences under § 2255, which were denied.

       Ms. Savage then filed the underlying Rule 60(b) motion. The district court

determined the Rule 60(b) motion was an unauthorized second or successive § 2255

motion and dismissed it for lack of jurisdiction.

       Ms. Savage filed an opening brief, which we construe as a request for a COA to

appeal from the dismissal of her motion. To obtain a COA, she must show that “jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Ms. Savage has failed to make this showing.

       A prisoner may not file a second or successive § 2255 motion unless he or she first

obtains an order from the circuit court authorizing the district court to consider the

motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district

court lacks jurisdiction to address the merits of a second or successive § 2255 motion.

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

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       A Rule 60(b) motion should be treated as a second or successive § 2255 motion if

it challenges the defendant’s conviction or sentence rather than a procedural error in the

prior § 2255 proceeding. See United States v. Nelson, 465 F.3d 1145, 1147-49 (10th Cir.

2006); see also Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (“A 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.”)

       In her Rule 60(b) motion, Ms. Savage argued she was entitled to sentencing relief

because she was erroneously assessed three criminal history points for a prior federal

case from 1995 and her attorney failed to object. She also argued her attorney

erroneously stated in her sentencing memorandum that she was convicted of a weapons

charge. In concluding the Rule 60(b) motion should be construed as a successive § 2255

motion, the district court observed that “[n]ot only is defendant challenging her sentence

in her motion, she is reasserting a federal basis for relief,” and noted that Ms. Savage had

previously raised these same arguments in a prior § 2255 motion. R., Vol. I at 24.

Because Ms. Savage had not obtained the proper authorization from this court to file a

successive § 2255 motion, the district court dismissed the Rule 60(b) motion for lack of

jurisdiction.

       In her request for a COA, Ms. Savage asserts the district court failed to rule on the

merits of the claims she raised in her § 2255 motion. She then states that arguments

challenging the district court’s failure to rule on certain claims are properly brought in a

Rule 60(b) motion. While it is true that an argument that the district court failed to

consider a habeas claim “asserts a defect in the integrity of the federal habeas

                                              3
proceedings,” and is properly brought in a Rule 60(b) motion, Spitznas, 464 F.3d at 1225,

Ms. Savage did not actually raise this argument in her Rule 60(b) motion. Instead, she

simply stated she filed a § 2255 motion and the district court “denied said relief.”

R., Vol. II at 284. The arguments in her Rule 60(b) motion all related to alleged

sentencing errors and ineffective assistance of counsel in relation to her sentencing.

       All of Ms. Savage’s arguments in her Rule 60(b) motion asserted or reasserted a

federal basis for relief from her sentence. Such arguments are properly brought in a

§ 2255 motion, not a Rule 60(b) motion. Ms. Savage previously filed a § 2255 motion

and she did not receive authorization from this court to file a successive § 2255 motion.

Reasonable jurists could not debate the correctness of the district court’s procedural

ruling to construe Ms. Savage’s Rule 60(b) motion as an unauthorized second or

successive § 2255 motion and dismiss it for lack of jurisdiction. Accordingly, we deny

Ms. Savage’s request for a COA and dismiss this matter.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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