                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                         April 23, 2007

                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                          No. 06-3274
 v.                                             (D.C. Nos. 04-CV-3202-KHV and
                                                      02-CR-20082-KHV)
 SIGIFREDO M ORA LES-M ORA LES,                             (Kansas)

          Defendant-Appellant.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.




      M r. M orales, a federal prisoner, seeks a Certificate of Appealability (COA )

to appeal the denial of his F ED . R. C IV . P. 60(b) motion challenging the denial of

his earlier 28 U .S.C. § 2255 petition. To the extent we recognize M r. M orales’

motion as a true 60(b) motion, we deny that request. To the extent M r. M orales’

60(b) motion is more properly classified as a second or successive § 2255

petition, we construe his application for a COA as a request to file a second or

successive habeas, which we also deny.


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      M r. M orales pled guilty to possessing cocaine with intent to distribute in

violation of federal law. On June 9, 2003, the district court sentenced him to 121

months imprisonment. On June 18, 2004, M r. M orales filed a habeas petition

pursuant to 28 U.S.C. § 2255. The district court denied that petition on January

7, 2005, and denied what the court construed as a timely motion to reconsider on

February 24, 2005.

      M r. M orales filed what he designated as a motion pursuant to Rule 60(b) on

June 12, 2006, seeking further reconsideration of the court’s denial of his § 2255

petition. In his 60(b) motion, M r. M orales alleged that his failure to receive

relevant transcripts had prevented him from effectively developing a claim under

Blakely v. Washington, 542 U.S. 296 (2004). The court noted that the motion was

not filed “within a reasonable time under Rule 60(b)(6),” and found “that to the

extent [it] could construe defendant’s Blakely argument as part of his original

Section 2255 motion,” it would deny the 60(b) motion. Rec., vol. I, doc. 81 at

1-2. The court further pointed out that it had advised M r. M orales when it denied

reconsideration of his first habeas petition that he must seek leave from this court

to file a second or successive habeas petition under § 2255 if he wished to pursue

the Blakely issue. Id.

      W e must first decide whether M r. M orales’ motion was a “true” Rule 60(b)

motion or a mislabeled successive habeas petition. See Spitznas v. Boone, 464

F.3d 1213, 1215-16 (10th Cir. 2006). To the extent he claims he failed to receive


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pertinent transcripts in time to prepare his first § 2255 motion, we conclude the

district court correctly characterized M r. M orales’ motion as a “true” Rule 60(b)

motion. See id. (A “‘true’ 60(b) motion . . . challenges a defect in the integrity of

the federal habeas proceeding” without leading to a “merits-based attack on the

disposition of a prior habeas petition.”). W ith respect to the merits of that

motion, we note that in a December 20, 2004 order, the district court stated that

transcripts had been sent to M r. M orales and determined “that a brief extension of

time [was] warranted” for M r. M orales to file a reply brief. Rec., vol. I, doc. 69

at 2. W hen M r. M orales subsequently filed an untimely reply (which the court

construed as a motion to reconsider), M r. M orales did not reassert he had not

received the transcripts. W e therefore conclude he had access to transcripts and

the opportunity to prepare his reply accordingly, and that jurists of reason would

not disagree with the district court’s denial of M r. M orales’ Rule 60(b) motion.

See M iller-Ed v. Cockrell, 537 U.S. 322, 327 (2003).

      To the extent M r. M orales’ Blakely claim was considered by the district

court on the merits, we note that challenges to the court’s previous ruling on the

merits are to be considered a successive habeas petition and not a 60(b) motion.

Spitznas, 464 F.3d at 1216. W here such claims have been improperly cast as a

60(b) motion, on appeal we w ill vacate the relevant portions of the district court’s

order and treat the notice of appeal and appellate brief as “an implied application

to this court for leave to file a second § 2255 motion.” United States v. Nelson,


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465 F.3d 1145, 1149 (10th Cir. 2006). To the extent the Blakely claim presents a

“claim of constitutional error omitted from the . . . initial habeas petition,” it too

is properly labeled a second habeas motion and considered by this court as such.

Spitznas, 464 F.3d at 1216. Looking at M r. M orales’ Blakely claim in this light,

we hold that he is not entitled to a second or successive petition under § 2255

because his claim is not based on newly discovered evidence or a new rule of

constitutional law made retroactive to cases on collateral appeal. See 28 U.S.C. §

2255 ¶ 8. Accordingly, we deny leave to file a second or successive habeas

petition.

      In sum, we D EN Y M r. M orales’ request for a COA to appeal the denial of

his true Rule 60(b) motion, VAC ATE the district court’s order to the extent it

addressed the merits of M r. M orales’ Blakely claim, construe portions of M r.

M orales’ request for a COA as an application to file a second or successive §

2255 petition, and D EN Y the request.


                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge




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