                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             DEC 18 2000
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-1568
                                                   (D.C. No. 98-WY-2330-AJ)
    CEDRIC DONNELL BROOKS, also                            (D. Colo.)
    known as Scout, also known as Adonis
    Bailey,

                Defendant-Appellant.


                            ORDER AND JUDGMENT             *




Before TACHA , EBEL , and BRISCOE , Circuit Judges.



         Defendant Cedric D. Brooks appeals the district court’s order of

October 25, 1999, denying his “Motion requesting that the defendant’s respond to

government procedure default be heard in the interest of justice,” (sic) which he

filed after the district court denied his motion to vacate, set aside, or correct his




*
      This order and judgment is not binding precedent, except under the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.
sentence under 28 U.S.C. § 2255.   1
                                       In his § 2255 motion, defendant contended

that the government wrongfully provided an informant benefits for his

information and subsequent testimony, that the government encouraged the

informant not to speak with defense counsel, that the government used the

informant to entrap defendant, that the government relied on testimony from the

informant that it knew to be perjured, that the government failed to inform the

grand jury about the informant’s background and criminal history, and that the

government wrongfully withheld a report and an audiotape from defendant. The

government moved to dismiss, arguing that defendant had procedurally defaulted

all the claims by failing to raise them on direct appeal. The district court granted

defendant a thirty-day extension of time to respond to the government’s

arguments. When defendant still had not responded two months after the

extended time period, the district court denied the § 2255 motion by order dated

March 30, 1999.   2




1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
2
       The court issued two orders on March 30, 1999. The first order was ten
pages long and contained the court’s analysis of defendant’s § 2255 motion and
its reasons for denying him relief. The second order simply recited that the matter
was before the court on defendant’s motion pursuant to 28 U.S.C. § 2255 and then
stated: “IT IS ORDERED that defendant’s Motion Pursuant to 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody should
                                                                     (continued...)

                                           -2-
       On April 22, 1999, defendant filed his “Motion requesting that the

defendant’s respond to government procedure default be heard in the interest of

justice,” in which he sought to establish cause for his failure to raise the claims

on direct appeal by asserting the ineffective assistance of his appellate counsel.

As part of the motion, defendant sought to amend his § 2255 motion to add claims

of ineffective assistance of trial counsel and ineffective assistance of appellate

counsel. Because this motion was filed more than ten days after the district

court’s entry of final judgment, and because the motion challenged the basis of

the district court’s denial of relief and sought to amend the § 2255 petition, we

will construe the post-judgment motion as one pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure.     See Weitz v. Lovelace Health Sys., Inc.   ,

214 F.3d 1175, 1178 (10th Cir. 2000) (noting that we generally construe motions

to alter or amend or to reconsider that are filed more than ten days after judgment

as a motion for relief under Rule 60(b));   Seymour v. Thornton , 79 F.3d 980, 987

(10th Cir. 1996) (holding that a party cannot amend a complaint after judgment


2
 (...continued)
be and is DENIED .” Dist. Ct. R., File #2, Doc. 107. This second order, which
did not contain any discussion of the court’s reasoning or any legal analysis, and
which was entered on the docket on April 2, 1999, met the requirements of Fed.
R. Civ. P. 58 for entry of final judgment on defendant’s § 2255 motion.     See
Clough v. Rush , 959 F.2d 182, 185 (10th Cir. 1992) (“Generally, orders
containing neither a discussion of the court’s reasoning nor any dispositive legal
analysis can act as final judgments if they are intended as the court’s final
directive and are properly entered on the docket.”).

                                            -3-
has entered unless he first sets the judgment aside pursuant to Rule 59(e) or

Rule 60(b)).

       We have held that a Rule 60(b) post-judgment motion filed in a § 2255

proceeding cannot be used to circumvent the restrictions on filing second or

successive petitions contained in the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA).      Lopez v. Douglas , 141 F.3d 974, 975 (10th Cir. 1998)

(per curiam). Accordingly, we have held that a Rule 60(b) post-judgment motion

should be treated as “a second habeas petition under [AEDPA].”      Id. Under

AEDPA, defendant was required to obtain prior authorization from this court

before filing a second § 2255 motion in district court. 28 U.S.C. § 2244(b),

§ 2255. This he failed to do. Therefore, the district court did not have

jurisdiction to rule on defendant’s second motion, and we must vacate the district

court’s order.   Lopez , 141 F.3d at 975-76.

       We will, however, construe defendant’s notice of appeal and his appellate

briefs as an implied application for leave to file a second § 2255 motion in district

court. Id. at 976. Based upon our review of defendant’s implied application,

we conclude that he has not made the showing necessary for authorization to file

a second § 2255 motion. In particular, defendant has not established the existence

of either “newly discovered evidence that, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing


                                          -4-
evidence that no reasonable factfinder would have found the movant guilty of

the offense,” or “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.”

28 U.S.C. § 2255.

      Accordingly, the district court’s order of October 25, 1999 disposing of

defendant’s unauthorized second petition is VACATED, and defendant’s implied

application for leave to file a second § 2255 motion is DENIED. Defendant’s

“Motion Requesting 20 Days to Respond to the Government[’s] Response to the

Appell[ant’s] Request for Certificate of Appeal” is GRANTED.

      The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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