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

                            FOR THE TENTH CIRCUIT                            May 6, 2013

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

              Plaintiff-Appellee,

v.                                                           No. 12-3341
                                                 (D.C. Nos. 6:06-CR-10129-JTM-1 &
JAMES E. BAKER,                                         6:09-CV-01130-JTM)
                                                              (D. Kan.)
              Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and LUCERO, Circuit Judges.



       James E. Baker, a federal prisoner proceeding pro se, seeks to appeal the

district court’s dismissal for lack of jurisdiction of his motion for relief pursuant to

Fed. R. Civ. P. 60(d)(3) and Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.

238 (1944), overruled on other grounds by Standard Oil Co. of Cal. v. United States,

429 U.S. 17 (1976). We deny a certificate of appealability (COA) and dismiss this

proceeding.




*
       This order is not binding precedent except under the doctrines of law of the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.
                                     Background

      Baker was convicted by a jury in 2006 of being a felon in possession of

ammunition, in violation of 18 U.S.C. § 922(g)(1). The jury found him not guilty on

a second count of possession of stolen ammunition, in violation of § 922(j). Baker

was sentenced to 235 months’ imprisonment. After an unsuccessful appeal to this

court, see United States v. Baker, 508 F.3d 1321 (10th Cir. 2007), denial of rehearing

en banc, see United States v. Baker, 523 F.3d 1141 (10th Cir. 2008), and denial of his

petition for certiorari, see Baker v. United States, 555 U.S. 853 (2008), Baker filed a

28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The district

court denied relief and we denied a COA. Baker subsequently filed two motions for

authorization to file a second-or-successive § 2255 motion, both of which were

denied. The district court also dismissed for lack of jurisdiction Baker’s “Motion to

Reconsider and Vacate Enhancement” as an unauthorized second-or-successive

§ 2255 motion, and we denied a COA.

      Baker’s latest attempt to challenge his conviction was a motion filed in the

district court alleging “fraud upon the court” and citing Rule 60(d)(3). He argued

that the prosecutor knowingly allowed unlawfully seized evidence to be presented to

the district court in his criminal trial and also knew or should have known that

testimony by a police witness regarding the date and time of his arrest was false. The

district court concluded that Baker’s motion asserted a new ground for relief from his

conviction, rather than attacking a defect in the integrity of his previously conducted


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§ 2255 proceeding. Therefore, because his motion sought § 2255 relief in substance,

if not in form, and Baker had not obtained authorization from this court to file a

second-or-successive § 2255 motion, the district court dismissed his motion for lack

of jurisdiction.

                                  Standard of Review

       Baker must obtain a COA to pursue an appeal. See United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling rests on

procedural grounds, he 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 deny a COA

because reasonable jurists would not find debatable the district court’s ruling that it

lacked jurisdiction over Baker’s motion because it was an unauthorized

second-or-successive § 2255 motion.

                                       Discussion

       A prisoner must obtain this court’s authorization to file a second-or-successive

§ 2255 motion. See 28 U.S.C. §§ 2255(h); 2244(b)(3). A prisoner’s post-judgment

motion is treated like a second-or-successive § 2255 motion—and is therefore subject

to the authorization requirements of § 2255(h)—if it asserts or reasserts claims of

error in the prisoner’s conviction. United States v. Nelson, 465 F.3d 1145, 1147

(10th Cir. 2006). In contrast, if the motion “seeks to correct an error in the


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previously conducted [§ 2255] proceeding itself,” it is not characterized as a

successive motion. Id. “[I]f the prisoner’s pleading must be treated as a second or

successive § 2255 motion, the district court does not even have jurisdiction to deny

the relief sought in the pleading.” Id. at 1148.

      Baker does not contend that his motion seeks to correct an error in his § 2255

proceeding. Rather, his fraud-on-the-court allegations relate solely to his underlying

criminal proceeding. Thus, under Nelson, the district court did not err in dismissing

his motion as an unauthorized second-or-successive § 2255 motion. But Baker

asserts that a motion invoking the district court’s inherent power to set aside a

judgment obtained through fraud on the court is not subject to the certification

requirements in § 2255(h) if it is brought under Fed. R. Civ. P. 60(d)(3) and

Hazel-Atlas. We disagree.

      In Hazel-Atlas, the Supreme Court held that a federal court possesses inherent

power to vacate a judgment obtained by fraud on the court. See 322 U.S. at 248-49.

The Court thus “recognized what is now referred to as the ‘fraud on the court’

doctrine.” Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995).

Rule 60(b) sets forth grounds upon which a party may move the district court to grant

relief from a final judgment. And Rule 60(d)(3) confirms that Rule 60 “does not

limit a court’s power to . . . set aside a judgment for fraud on the court.” Before

December 1, 2007, when the rule was amended to add subsection (d)(3),

substantively identical savings-clause language regarding fraud-on-the-court claims


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was included in Rule 60(b). See Fed. R. Civ. P. 60(b) (eff. Aug. 1, 1987) (providing

that “[t]his rule does not limit the power of a court to . . . set aside a judgment for

fraud upon the court”). The Supreme Court has noted that the inherent power to set

aside a judgment due to fraud on the court, as recognized in Hazel-Atlas, was

reflected and confirmed in former Rule 60(b). See Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 233-34 (1995) (stating that Rule 60(b) “reflects and confirms the

court’s own inherent and discretionary power, ‘firmly established in English practice

long before the foundation of our Republic,’ to set aside a judgment whose

enforcement would work inequity” (quoting Hazel-Atlas, 322 U.S. at 244)). A

fraud-on-the-court claim may be brought either as an independent action preserved

by the savings clause in Rule 60(d)(3), or as a claim under Rule 60(b)(3), which

provides for relief from judgment based on “fraud . . ., misrepresentation, or

misconduct by an opposing party.” See Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d

1281, 1291 (10th Cir. 2005) (noting “courts have allowed parties to file a claim for

fraud on the court under subsection (b)(3)”). In either case, this court applies the

same demanding standard of proof for establishing a fraud on the court. See id.

       The fact that Baker labeled his motion as brought under Hazel-Atlas and the

savings-clause language in Rule 60(d)(3) does not change the analysis we use to

determine if his pleading is an unauthorized second-or-successive § 2255 motion. “It

is the relief sought, not [the] pleading’s title, that determines whether the pleading is

a § 2255 motion.” Nelson, 465 F.3d at 1149. Thus, we apply the same analysis, even


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when the motion asserts a fraud-on-the-court claim. In Spitznas v. Boone, 464 F.3d

1213, 1215 (10th Cir. 2006), in which we first construed the Supreme Court’s

decision in Gonzalez v. Crosby, 545 U.S. 524, 538 (2005), we held that “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.” We

then discussed when a Rule 60(b) motion alleging fraud on the court is properly

considered a motion seeking relief under 28 U.S.C. §§ 2254 or 2255. See Spitznas,

464 F.3d at 1216. We stated that a motion alleging fraud on the court in a federal

habeas proceeding constitutes a true 60(b) motion. See id.; see also Gonzalez,

545 U.S. at 532 n.5 (citing “[f]raud on the federal habeas court” as an example of a

defect in the integrity of a federal habeas proceeding that could be challenged in a

Rule 60(b) motion). But a motion alleging fraud on the court in a 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.

See Spitznas, 464 F.3d at 1216.

      In In re Pickard, 681 F.3d 1201, 1206-07 (10th Cir. 2012), we noted that

Spitznas did not involve a fraud claim of any kind, and we therefore characterized as

dictum a portion of the discussion in Spitznas, see 464 F.3d at 1216, regarding the

types of fraud-on-the-court allegations necessary to bring a “true” Rule 60(b)




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motion.1 But in Berryhill v. Evans, 466 F.3d 934, 937-38 (10th Cir. 2006), we had

applied the reasoning in Gonzalez and Spitznas to hold that a defendant’s Rule 60(b)

motion alleging fraud on the court was an unauthorized second-or-successive § 2254

petition. The defendant in Berryhill claimed in his motion that state court rulings

related to his conviction and his direct appeal were void due to fraud on the court.

Id. at 937.2 We construed these claims as “seek[ing] to assert or reassert habeas

claims (alleged fraud committed regarding his original sentence and direct

appeal) . . ., resulting in a merits-based attack on [the defendant’s] state convictions.”

Id. Because the defendant’s motion was therefore a second-or-successive habeas

petition, and he had not obtained authorization from this court to file it, we concluded

that the district court lacked jurisdiction to reach the merits of his motion. See id.

at 938.

      Our holding in Berryhill is controlling in this case. To the extent that Baker

attempts to distinguish Berryhill because his motion invoked the district court’s

inherent power to set aside a judgment for fraud on the court under Hazel-Atlas, as

1
       We note that the Spitznas analysis we deemed to be dictum in Pickard is not
relevant to the claims Baker asserted in his motion. In Pickard, we expressed
concern about language in Spitznas limiting the scope of challenges a defendant
could raise in a Rule 60(b) motion regarding defects in the integrity of a federal
habeas proceeding. See 681 F.3d at 1206-07. Here, as we have noted, Baker does
not make any claim of fraud on the court in his § 2255 proceeding.
2
        The defendant in Berryhill also asserted there was fraud on the court in his
federal habeas proceeding, see 466 F.3d at 937, but our holding as to that allegation
is not relevant here because, again, Baker does not make that claim as to his § 2255
proceeding.


                                           -7-
opposed to the court’s statutory authority to set aside a judgment under Rule 60(b),

we are not persuaded.

       The Supreme Court in Gonzalez emphasized that petitioners cannot circumvent

the statutory certification requirements applicable to second-or-successive

applications by filing pleadings that are labeled as motions under Rule 60(b), but are

habeas corpus petitions in substance. See Gonzalez, 545 U.S. at 531-32. Applying

that reasoning, we look at the relief sought, rather than a pleading’s title or its form,

to determine whether it is a second-or-successive collateral attack on a defendant’s

conviction. See Nelson, 465 F.3d at 1149 (noting that “[t]he reasoning of Gonzalez

does not depend on which rule the prisoner invokes” (quotation omitted)). In Nelson,

we considered the interplay between § 2255 and the Federal Rules of Civil Procedure

and concluded that a defendant cannot elude the certification requirements in

§ 2255(h) by filing a motion under Rules 15 and 60(b) that attacks his underlying

conviction. Id. at 1147-49. We have applied the same analysis to conclude that a

defendant cannot avoid the limitations on successive § 2255 motions by labeling his

pleading as filed under the All Writs Act, 28 U.S.C. § 1651(a). See United States v.

Torres, 282 F.3d 1241, 1246 (10th Cir. 2002). We said that “to allow a petitioner to

avoid the bar against successive § 2255 petitions by simply styling a petition under a

different name would severely erode the procedural restraints imposed under

28 U.S.C. §§ 2244(b)(3) and 2255.” Id.; see also Melton v. United States, 359 F.3d

855, 857 (7th Cir. 2004) (“Call it a motion for a new trial, arrest of judgment,


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mandamus, prohibition, coram nobis, coram vobis, audita querela, certiorari, capias,

habeas corpus, ejectment, quare impedit, bill of review, writ of error, or an

application for a Get-Out-of-Jail Card; the name makes no difference. It is substance

that controls.”).

       It is clear that, had Baker filed his fraud-on-the-court claim in a motion

seeking relief under Rule 60(b), his pleading would be considered a

second-or-successive collateral attack on his conviction. See Berryhill, 466 F.3d

at 937-38. Baker has offered no controlling or even persuasive authority supporting

his contention, nor has he offered a reasoned basis to conclude that an identical claim

seeking the same relief, but invoking the district court’s inherent power under

Rule 60(d)(3) and Hazel-Atlas, is exempt from the certification requirements in

§ 2255(h).

                                      Conclusion

       Because Baker has not shown that jurists of reason would find it debatable

whether the district court was correct in ruling that his motion was an unauthorized

second-or-successive § 2255 motion, we deny his application for a COA and dismiss

the appeal.



                                                Entered for the Court


                                                ELISABETH A. SHUMAKER, Clerk



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