                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                         December 31, 2013
                        UNITED STATES COURT OF APPEALS
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
                                        TENTH CIRCUIT



    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                              No. 13-5122
    v.                                             (D.C. No. 4:05-CR-00091-TCK-5)
                                                              (N.D. Okla.)
    CURTIS DEON JONES, a/k/a Straight
    Face, a/k/a Frankfort, a/k/a Deon,

                Defendant - Appellant.



                               ORDER AND JUDGMENT*


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



         Mr. Curtis Deon Jones pled guilty in federal district court on a charge of

racketeering conspiracy. After unsuccessfully moving to vacate the sentence

under 28 U.S.C. § 2255, he filed a motion to vacate under Fed. R. Civ. P. 60(b)(4)

and 60(d)(1) and Fed. R. Civ. P. 12(b)(1). The district court denied the motion

through a minute entry on the docket sheet. We dismiss the appeal over the denial

of relief under Rule 60(b)(4) and 60(d)(1). On the denial of relief under Rule

12(b)(1), we affirm.


*
         This order and judgment does not constitute precedent. 10th Cir. R. 32.1(A).
      Though Mr. Jones bases the appeal in part on Rule 60(b) and (d), precedent

limits appellate jurisdiction when the movant has already pursued a motion to

vacate the sentence under 28 U.S.C. § 2255. And, Mr. Jones has done so. Thus,

we must apply one of the statutory limits under § 2255, the limitation on second-

or-successive motions. This limitation prevents us from reaching the merits of

Mr. Jones’s claim under Rules 60(b) and (d).

      Mr. Jones also invoked Fed. R. Civ. P. 12(b)(1), but this rule did not apply

to his criminal proceedings. Thus, the district court correctly declined to entertain

the motion under this rule.

I.    Mr. Jones’s Reliance on Rule 60(b)(4) and (d)(1)

      In the body of his motion, Mr. Jones invoked Fed. R. Civ. P. 60(b)(4) and

60(d)(1). 1 Invocation of these rules, however, creates an ambiguity.

      These rules do not govern criminal proceedings, and Mr. Jones is

challenging the jurisdiction of the district court to enter a judgment of conviction.

See Fed. R. Civ. P. 1 (stating that the Federal Rules of Civil Procedure apply in

civil cases); see also United States v. Triplett, 166 F. App’x 362, 365 (10th Cir.

2006) (stating that Fed. R. Civ. P. 60(b) “has no applicability to a criminal




1
        The title of the motion refers to Fed. R. Civ. P. “60(d)(7).” No such subsection
exists. In the body of the motion, Mr. Jones refers to Rule 60(d)(1). Mot. to Vacate Due
to Ct.’s Lack of Subject Matter Jurisdiction, & Pursuant to Fed.R.Civ.P. 60(d)(7) and
Rule 12(b)(1) at 1, Sept. 12, 2013, ECF No. 991. We assume that Mr. Jones’s reference
to Rule 60(d)(7) was a typographical error.
                                            2
proceeding”); United States v. Ramirez, 211 F. App’x 712, 713-14 (10th Cir.

2007) (stating that Fed. R. Civ. P. 60(b) does not apply in criminal cases). 2

       But, Mr. Jones also sought relief under 28 U.S.C. § 2255. For proceedings

under § 2255, the Federal Rules of Civil Procedure can be applied. See Rule 12,

Rules Governing Section 2255 Proceedings in the United States District Courts.

       Thus, a threshold issue exists: Is Mr. Jones invoking Fed. R. Civ. P. 60(b)

and (d) to challenge the underlying criminal conviction (where the Federal Rules

of Civil Procedure would not apply) or the prior § 2255 proceedings (where these

rules could be applied)?

       For this question, we must examine the relief sought even though Mr. Jones

styled his motion as one brought under Fed. R. Civ. P. 60(b)(4) and 60(d)(1). See

United States v. Baker, 718 F.3d 1204, 1208 (10th Cir. 2013) (stating that even

though the claimant had invoked Fed. R. Civ. P. 60(d)(3), the Court had to

examine the relief sought rather than the title or form “to determine whether it

[was] a second-or-successive collateral attack on [the] conviction”); 3 In re Cline,

531 F.3d 1249, 1253 (10th Cir. 2008) (per curiam) (applying the same principle

when the claimant sought recharacterization of his motion as one under Fed. R.

Civ. P. 60(b)(4)). And, if we conclude that Mr. Jones is seeking relief from the
2
       Triplett and Ramirez are persuasive.
3
       Baker was originally issued as an unpublished order and judgment. Thus, the
order states that it does not ordinarily constitute precedent. Baker, 718 F.3d at 1205 n.*.
But, the panel subsequently reissued the order as a published decision. United States v.
Baker, No. 12-3341 (10th Cir. May 21, 2013), ECF No. 10078108.
                                              3
underlying conviction, our precedent would require us to treat the new motion as

if it were a second motion under § 2255. See Baker, 718 F.3d at 1208; In re Cline,

531 F.3d at 1253. If it is, the claimant must satisfy the procedural requirements

for an appeal from a second denial of relief under § 2255. See Baker, 718 F.3d at

1208.

        When we look at the relief sought by Mr. Jones, rather than the title of his

motion, we see that he is wanting to vacate his conviction rather than correct some

irregularity in his earlier proceedings under § 2255. In the motion, he does not

refer to his prior action under § 2255; instead, he asks the district court to release

him from prison and order his discharge. Mot. to Vacate Due to Ct.’s Lack of

Subject Matter Jurisdiction, & Pursuant to Fed.R.Civ.P. 60(d)(7) and Rule

12(b)(1) at 6, Sept. 12, 2013, ECF No. 991. Thus, under our precedent, we must

determine whether Mr. Jones satisfies the procedural requirements for a

second-or-successive motion under § 2255.

        To appeal from an adverse ruling under § 2255, Mr. Jones would need to

obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B); see also

United States v. Harper, 545 F.3d 1230, 1232-33 (10th Cir. 2008) (stating that a

certificate of appealability is required to appeal from the denial of a motion

recharacterized as a second-or-successive motion for relief under § 2255). And,

we can only issue this certificate if the claim under § 2255 is reasonably

debatable. Harper, 545 F.3d at 1233.

                                            4
      The claim is not reasonably debatable because we cannot reach the merits.

When a petitioner files a second-or-successive motion under § 2255, we can only

address the merits if the claim involves newly discovered evidence or a new rule

of constitutional law. See 28 U.S.C. § 2255(h). Mr. Jones’s claim does not

involve newly discovered evidence or a newly recognized principle of

constitutional law. Thus, we cannot issue a certificate of appealability. See

Harper, 545 F.3d at 1234 (declining to issue a certificate of appealability because

the motion, recharacterized as one under § 2255, did not satisfy the requirements

for a second-or-successive motion). And because we must decline to issue a

certificate of appealability, we must dismiss the appeal over the denial of relief

under Rules 60(b)(4) and (d)(1).

II.   Mr. Jones’s Reliance on Rule 12(b)(1)

      In district court, Mr. Jones also relied in the caption on Fed. R. Civ. P.

12(b)(1). 4 But, this rule applies in proceedings that are civil, not criminal. See

Fed. R. Civ. P. 1. Thus, Mr. Jones cannot use Rule 12(b)(1) of the civil rules to

challenge his conviction in a criminal case. In these circumstances, we conclude

that the district court acted correctly in denying relief under Rule 12(b)(1).

Accordingly, we affirm this part of the ruling.




4
      In the body of the motion, Mr. Jones referred to Fed. R. Civ. P. 12(b)(7). This rule
addresses failure to join a party. The reference to Rule 12(b)(7) is apparently a
typographical error.
                                            5
III.   Summary

       We treat Mr. Jones’s motion under Rule 60(b)(4) and 60(d)(1) as a second-

or-successive motion under § 2255. We lack jurisdiction to entertain this part of

the ruling because Mr. Jones has not justified a certificate of appealability.

       We have jurisdiction to entertain the ruling to the extent that it denied relief

under Fed. R. Civ. P. 12(b)(1). But, in exercising this jurisdiction, we conclude

that the district court correctly denied relief under Rule 12(b)(1). Thus, we affirm

this part of the district court’s ruling.


                                            Entered for the Court




                                            Robert E. Bacharach
                                            Circuit Judge




                                              6
