                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                     October 13, 2006
                                 TENTH CIRCUIT
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court



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

          Plaintiff-Appellee,
                                                         No. 06-8023
 v.                                                (D.C. No. 02-CV-224-B)
                                                         (W yoming)
 ARNOLD D. BUTLER,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


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




      Arnold Devonne Butler, a federal prisoner proceeding pro se 1 , challenges

the district court’s denial of his Rule 60(b)(6) motion. The district court also


      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
      1
         Because he is proceeding pro se, we review M r. Butler’s pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
denied M r. Butler’s application for a certificate of appealability (“COA”) 2 .

Because we conclude the district court incorrectly treated M r. Butler’s Rule 60(b)

motion as a “true” Rule 60(b) motion, we vacate the district court’s order for lack

of jurisdiction, construe M r. Butler’s motion as an application to file a second or

successive habeas petition, and deny that motion.

      M r. Butler w as convicted by a jury in 1998 of possession of cocaine with

intent to distribute and aiding and abetting in violation of 21 U.S.C. § 841(a)(1)

and 841(b)(1)(B). In 2002, he filed a motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255 claiming he was denied effective

assistance of counsel. The district court denied M r. Butler’s § 2255 motion, and

he appealed. W e denied M r. Butler’s application for a COA and dismissed his

appeal. Rec., vol I at tab 24.

      M ore than a year and a half after the district court denied his § 2255

motion, M r. Butler filed a motion for relief from judgment pursuant to F ED . R.

C IV . P. 60(b)(6), claiming the district court misconstrued his § 2255 claims and

the accompanying affidavit. The district court stated that it had “reviewed M r.

Butler’s supplemental affidavit again” and that “[e]ven when viewed in the light




      2
         A petitioner must obtain a COA before proceeding with his or her appeal
of a district court’s denial of his or her Rule 60(b) motion, where the district
court treated the motion as a “true” Rule 60(b) motion and not as a second or
successive habeas petition. Spitznas v. Boone, __ F.3d __, 2006 W L 2789868 at
*3 (10th Cir., Sept. 29, 2006).

                                          -2-
suggested by M r. Butler, the affidavit is insufficient to support any of the claims

presented in his original § 2255 motion.” Rec., vol. I at tab 27. The court denied

M r. Butler’s Rule 60(b)(6) motion, and he appeals that decision.

      In Spitznas v. Boone, __ F.3d __, 2006 W L 2789868 at *1 (10th Cir., Sept.

29, 2006), we acknowledged that in Gonzalez v. Crosby, 545 U.S. 524 (2005), the

Supreme Court overruled our holding in Lopez v. Douglas, 141 F.3d 974 (10th

Cir. 1998), that all Rule 60(b) motions in habeas proceedings must be treated as

second or successive habeas petitions for purposes of 28 U.S.C. § 2244(b).

Accordingly, we now must distinguish between Rule 60(b) motions that are “true”

Rule 60(b) motions and second or successive habeas petitions that merely

masquerade as Rule 60(b) motions. Spitznas, 2006 W L 2789868 at * 1-4. “Under

Gonzalez, 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.” Id. at 1. In the event we determine that the district court incorrectly

treated a motion for a successive or second habeas petition as a Rule 60(b)

motion, “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

petition.” Id. at *4.

      M r. Butler’s claim that the district court misconstrued arguments in his

§2255 motion and certain statements in his affidavit do not, as he asserts,

“challenge[] a defect in the integrity of the federal habeas proceeding.” Id. at *1.

                                          -3-
Instead, his claim fits squarely within one of the examples of a Rule 60(b) motion

that we said in Spitznas should be treated as a second or successive habeas

petition in that his “motion seek[s] vindication of [one of his underlying] habeas

claim[s] by challenging the habeas court’s previous ruling on the merits of that

claim.” Id. (quotations omitted). In other words, M r. Butler’s claim that the

district court misconstrued his arguments or certain evidence he presented does

nothing more than challenge the court’s ruling. Accordingly, his Rule 60(b)(6)

motion cannot be deemed a “true” Rule 60(b) motion and must instead be treated

as a second or successive habeas petition.

             The AEDPA -amended habeas corpus statutes restrict the power
      of the federal courts to entertain second or successive applications
      for w rits of habeas corpus. See 28 U.S.C. § 2244. Before a
      petitioner may file a second or successive 28 U.S.C. § 2254 petition
      in the district court, he must successfully apply to this court for an
      order authorizing the district court to consider the petition. See id. §
      2244(b)(3).

Spitznas, 2006 W L 2789868 at *1 (footnote omitted). In order to receive

authorization to file a successive petition,

      an applicant must make a prima facie showing that he satisfies the
      criteria in § 2244(b)(2). . . . That is he must show that: (i) the factual
      predicate for the claim could not have been discovered previously
      through the exercise of due diligence; and (ii) the facts underlying
      the claim, if proven and viewed in light of the evidence as a whole,
      would be sufficient to establish by clear and convincing evidence
      that, but for constitutional error, no reasonable factfinder would have
      found the applicant guilty of the underlying offense. 28 U.S.C. §
      2244(b)(2)(B).

Spitznas, 2006 W L 2789868 at *12. W e need not consider whether M r. Butler

                                          -4-
meets the second element of this inquiry, “since the test is conjunctive and he

fails the first element.” Id. M r. Butler presents no new facts or evidence in

support of his ineffective assistance of counsel claims. Instead, he merely asserts

the district court misunderstood the evidence he had previously presented. He has

thus failed to make a prima facie showing that might permit us to authorize the

filing of a second or successive petition.

      Accordingly, we VAC ATE for lack of jurisdiction the district court’s order

denying M r. Butler’s Rule 60(b)(6) motion, DISM ISS his application for a COA

and DISM ISS this appeal.    Finally, we construe M r. Butler’s notice of appeal as

an application to file a second or successive habeas petition, and we DENY it.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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