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

                               FOR THE TENTH CIRCUIT                      April 1, 2016

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                         No. 15-8121
                                                (D.C. Nos. 1:15-CV-00173-SWS &
LAUREN ELIZABETH SCOTT,                              1:12-CR-00058-SWS-2)
                                                            (D. Wyo.)
       Defendant - Appellant.


              ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before TYMKOVICH, Chief Judge, MATHESON and McHUGH, Circuit Judges.


      Defendant Lauren Elizabeth Scott, a federal prisoner proceeding pro se, seeks

to appeal the district court’s dismissal of what it construed to be an unauthorized

second or successive motion under 28 U.S.C. § 2255. See In re Cline, 531 F.3d

1249, 1252 (10th Cir. 2008) (per curiam). Ms. Scott contends that the district court

erred in construing her “Petition to Vacate Judgement for Fraud on the Court (Fed. R.

Civ. P. 60(d)(3))” as a § 2255 motion and that it further erred in concluding that it

was second or successive. We deny a certificate of appealability (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       This order is not binding precedent except under the doctrines of law of the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.
                                           I.

       Ms. Scott pled guilty to fraud and money-laundering charges arising from a

scheme in which she and others took money from investors for “wind farm” projects

in Wyoming that did not actually exist. Following an aborted appeal (she voluntarily

dismissed her appeal before any briefs were filed), she filed a § 2255 motion. The

district court denied relief and this court denied a COA, United States v. Scott,

No. 15-8030, Order Denying COA (Oct. 20, 2015). Shortly before we issued our

order denying COA, Ms. Scott filed what she contended was an independent action

under Fed. R. Civ. P. 60(b)(3) for fraud on the court. She contended that the

government perpetrated a fraud on the court by (1) keeping the grand jury empaneled

more than 18 months without a court order, see Fed. R. Crim. P. 6(g); and

(2) fabricating evidence and producing perjured testimony at two pretrial hearings.

She argued that her conviction and sentence should therefore be set aside.

       The district court concluded that Ms. Scott’s petition was in substance a

§ 2255 motion because it attacked her conviction and sentence. It further concluded

that this was her second § 2255 motion and that she had not obtained circuit

authorization before filing it. The court therefore dismissed the matter for lack of

jurisdiction.

                                           II.

       To appeal the district court’s dismissal, Ms. Scott must first obtain a COA

under 28 U.S.C. § 2253(c)(1)(B). See United States v. Baker, 718 F.3d 1204, 1206


                                          -2-
(10th Cir. 2013) (requiring COA to appeal dismissal of filing that district court

construed as unauthorized second or successive § 2255 motion). Because the district

court’s dismissal rests on procedural grounds, Ms. Scott must show both “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).

      We conclude that reasonable jurists could not debate the propriety of

construing Ms. Scott’s purported Rule 60(b) petition as a § 2255 motion. See Baker,

718 F.3d at 1206-07 (holding that where fraud-on-the-court allegations related to

underlying criminal proceedings and not to integrity of § 2255 proceedings, district

court properly construed Rule 60 motion as § 2255 motion). We further conclude

that reasonable jurists could not debate the propriety of construing the § 2255 motion

as a second or successive motion.

      Ms. Scott contends the motion is not second or successive because the district

court entered an amended judgment on November 16, 2015, after she filed her first

§ 2255 motion. See Magwood v. Patterson, 561 U.S. 320, 323-24 (2010). But the

record shows that the district court has never amended the judgment as to Ms. Scott.

The order it entered on November 16, 2015, merely identified the successor in

interest of one of the payees to whom Ms. Scott’s co-defendant, Robert Arthur Reed,

owes restitution. That order had no effect on Ms. Scott’s judgment. So the district


                                          -3-
court properly construed her Rule 60(d)(3) motion as a second or successive § 2255

motion. Because Ms. Scott did not obtain our authorization before filing the motion,

see 28 U.S.C. §§ 2244(b)(3), 2255(h), the district court properly dismissed it for lack

of jurisdiction, see In re Cline, 531 F.3d at 1252.

      We therefore deny a COA and dismiss this matter. We grant Ms. Scott’s

motion to proceed on appeal without the prepayment of fees or costs.


                                                Entered for the Court




                                                ELISABETH A. SHUMAKER, Clerk




                                          -4-
