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

                             FOR THE TENTH CIRCUIT                          July 21, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-3106
                                                 (D.C. No. 5:10-CR-40118-JAR-1)
TRAMAINE MONDALE BEADLES,                                    (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Tramaine Beadles, proceeding pro se, appeals the district court’s denial of his

motion for a new trial. Because this motion was actually an unauthorized second or

successive motion under 28 U.S.C. § 2255, we vacate the district court’s order and

remand with instructions to dismiss for lack of jurisdiction.

                                           I

      After receiving an anonymous tip that Beadles had robbed a bank in Topeka,

Kansas, FBI agents conducted an interview of Beadles in which he confessed after

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
signing a waiver of his Miranda rights. Beadles repeated his confession when

testifying at trial. He claimed that he was coerced into participating in the robbery

through threats of violence to himself and his wife. A jury convicted Beadles of bank

robbery and he was sentenced to 210 months’ imprisonment.

      Prior to sentencing, Beadles filed a motion for a new trial based on newly

discovered evidence pursuant to Fed. R. Crim. P. 33, which the district court denied.

We affirmed Beadles’ sentence on direct appeal. United States v. Beadles, 508 F.

App’x 807, 814 (10th Cir. 2013). He then filed a § 2255 motion in the district court,

which was also denied.

      The instant appeal concerns a second Rule 33 motion filed by Beadles

following the district court’s denial of habeas relief. Beadles claims the government

violated his due process rights because it could not produce phone records of the

anonymous tip. He requested that the court vacate his conviction. The district court

denied the motion, concluding Beadles offered only speculative and conclusory

claims of new evidence, which he claimed to have learned about from counsel prior

to his initial Rule 33 motion. After Beadles appealed, the government filed a motion

for remand, asserting that Beadles’ Rule 33 motion was actually a second or

successive § 2255 motion over which the district court lacked jurisdiction as Beadles

failed to receive authorization under § 2255(h).

                                           II

      A district court has jurisdiction to address the merits of a second or successive

§ 2255 motion only if the defendant first obtains authorization from a circuit court.

                                           2
In re Lindsey, 582 F.3d 1173, 1174 (10th Cir. 2009) (per curiam). A motion

“claiming the right to be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States” should be treated as a

§ 2255 motion. United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006)

(quotation omitted). “It is the relief sought, not [the] pleading’s title, that determines

whether the pleading is a § 2255 motion.” Id. at 1149.

      In his second motion for a new trial, Beadles seeks release from prison on the

ground that his conviction was obtained in violation of the Constitution. He does not

allege any newly discovered evidence that would justify a new trial, and admitted

that the information forming the basis of his motion was disclosed to him prior to

sentencing. We thus conclude his motion was actually an unauthorized second or

successive § 2255 motion. See United States v. Evans, 224 F.3d 670, 674 (7th Cir.

2000) (“A defendant whose argument is not that newly discovered evidence supports

a claim of innocence, but instead that he has new evidence of a constitutional

violation or other ground of collateral attack, is making a motion under § 2255 . . . no

matter what caption he puts on the document.”).

      To the extent Beadles attempts to pursue a fraud upon the court theory, our

conclusion remains the same. “[A] motion alleging fraud on the court in the

defendant’s criminal proceeding must be considered a second-or-successive collateral

attack because it asserts or reasserts a challenge to the defendant’s underlying

conviction.” United States v. Baker, 718 F.3d 1204, 1207 (10th Cir. 2013). Because

Beadles’ attempt to collaterally attack his conviction renders his Rule 33 motion an

                                            3
unauthorized second or successive § 2255 motion, the district court lacked

jurisdiction to consider it. In re Lindsey, 582 F.3d at 1174.

                                          III

       We GRANT the government’s motion to remand.1 The district court’s order is

VACATED. We REMAND with instructions to dismiss the motion for lack of

jurisdiction.




                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




       1
       In his response to the government’s motion, Beadles requests a stay of these
proceedings. We deny that request.
                                           4
