                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                       PUBLISH
                                                                    October 25, 2006
                     UNITED STATES CO URT O F APPEALS             Elisabeth A. Shumaker
                                                                      Clerk of Court
                                  TENTH CIRCUIT



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

                Plaintiff-Appellee,

    v.                                                  No. 05-2141

    EN RIQ U E PED RA ZA ,

                Defendant-Appellant.



           A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                    FOR T HE D ISTRICT OF NEW M EXICO
                          (D .C . No. CIV-04-1433 M V)


Submitted on the briefs: *

Enrique Pedraza, Pro se.


Before BROR BY and EBEL, Circuit Judges, and KANE, ** District Judge.


EBEL, Circuit Judge.



*
       After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
      Enrique Pedraza appeals from an order of the district court in this

28 U.S.C. § 2255 case denying his Fed. R. Civ. P. 59(e) motion. The motion

sought reconsideration of the district court’s order construing his Fed. R. Civ. P.

60(b) motion as a successive application under 28 U.S.C. § 2255. W e conclude,

pursuant to our decision in Spitznas v. Boone, No. 05-6236, 2006 W L 2789868

(10th Cir. Sept. 29, 2006), that the motion for reconsideration was itself in part a

second § 2255 motion, and in part a “true” Rule 59(e) motion. W e therefore now

(1) affirm in part the denial of the Rule 59(e) motion; (2) vacate the denial, to the

extent the motion constituted a second § 2255 motion; (3) construe M r. Pedraza’s

request for a certificate of appealability (COA) as an application to file the

second § 2255 motion; and (4) deny the application.

                          Factual and Procedural H istory

      In 1991, M r. Pedraza was convicted after a jury trial in federal court of

conspiracy with intent to distribute, and possession with intent to distribute, in

excess of five kilograms of cocaine. He was sentenced to 384 months’

imprisonment. This court affirmed his conviction and sentence on direct appeal.

United States v. Pedraza, 27 F.3d 1515, 1530-31 (10th Cir. 1994); United States

v. Pedraza, No. 94-2267, 1995 W L 755265 (10th Cir. Dec. 21, 1995)

(unpublished). W e further denied COA and dismissed his appeal from the district




                                          -2-
court’s denial of his § 2255 motion. United States v. Pedraza, No. 98-2148, 1998

W L 802283 (10th Cir. Nov. 18, 1998) (unpublished).

      On December 27, 2004, M r. Pedraza filed a motion in district court entitled

“M otion for leave of court to allow movant to restart the 1-year limitations period

to file a § 2255 motion based on newly discovered evidence which warrants the

application of equitable tolling principles – due to the prosecution’s unlawful

suppression of material evidence favorable to his defense during trial, appeal and

original section 2255 limitation period.” The district court, construing this

motion as a second or successive § 2255 motion, ordered that it be transferred to

this court for authorization pursuant to 28 U.S.C. § 1631.

      On June 9, 2005, this court denied the transferred request for authorization

to file a successive § 2255 motion. In the meantime, M r. Pedraza filed a motion

requesting the district court to reconsider its order transferring his 60(b) motion

to this court. Although this motion was not filed in district court until M arch 3,

2005, it was placed in the prison mailbox within ten days of the district court’s

order. It therefore constituted a motion under Fed. R. Civ. P. 59(e). See Berrey

v. Asarco Inc., 439 F.3d 636, 641 n.3 (10th Cir. 2006) (stating “motion for

reconsideration” filed within ten days of judgment is treated as Rule 59(e)

motion).

      In his Rule 59(e) motion, M r. Pedraza urged the district court to reconsider

its decision characterizing his prior pleading of December 27, 2004 as a

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successive § 2255 motion rather than a “true” 60(b) motion. See Spitnzas, 2006

W L 2789868, at *1-*2 (explaining difference between treatment of successive

habeas pleadings and true Rule 60(b) motions). The district court, noting that it

had already transferred the underlying motion to this court as a second or

successive petition, determined that it lacked jurisdiction over the motion to

reconsider. In an order dated M arch 24, 2005, it therefore denied the motion to

reconsider.

                                      Analysis

      In Spitznas, we explained that a purported Rule 60(b) motion that “in

substance or effect asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction” is actually a second or successive habeas

petition (or, as in this case, a successive § 2255 motion), 1 requiring authorization

by this court under 28 U.S.C. § 2244(b) in order proceed in the district court. Id.,

at *1. Rule 59(e) motions are subject to the same characterization. See United

States v. Lam bros, 404 F.3d 1034, 1036-37 (8th Cir.) (concluding that a R ule

59(e) motion was subject to precertification because it “sought ultimately to

resurrect the denial of [the] earlier § 2255 motion”), cert. denied, 125 S.Ct. 2953

(2005).



1
       Although Spitznas involved the interplay between § 2254 and Rule 60(b),
we have since stated that the same mode of analysis applies when addressing the
restriction on second or successive motions contained in § 2255. United States v.
Nelson, No. 06-6071, 2006 W L 2848113 (10th Cir. Oct. 6, 2006).

                                          -4-
      In his Rule 59(e) motion, M r. Pedraza argued that the Rule 60(b) motion

was in fact a “true” 60(b) motion, because it challenged the integrity of the final

order entered in his original § 2255 proceedings. In support of this contention,

M r. Pedraza argued extensively that the Government had engaged in willful

concealment of exculpatory evidence during the period of time when he could

have filed his original § 2255 motion, and that he should now be permitted to

raise a § 2255 claim under Brady v. M aryland, 373 U.S. 83 (1963). This was

essentially the same argument he presented in his Rule 60(b) motion.

      To the extent M r. Pedraza’s Rule 59(e) motion sought recharacterization of

his Rule 60(b) motion as a “true” Rule 60(b) motion, his argument should have

been addressed to this court, since the case had been transferred here and the

request for authorization was pending. Therefore, the district court properly

denied his motion. To the extent that the Rule 59(e) motion presented substantive

argument reasserting a federal basis for relief from his underlying conviction, the

district court should have transferred the motion to this court as an additional

request to file a second § 2255 motion.

      Thus, the portion of the Rule 59(e) motion that raised substantive

arguments in support of a second § 2255 claim is itself a second § 2255 motion.

W e construe M r. Pedraza’s request for a COA as a request for authorization to

file a second or successive § 2255 motion. In our order of June 9, 2005, we

denied him authorization to file essentially the same § 2255 claim he seeks to file

                                          -5-
now. Having considered M r. Pedraza’s arguments we see no reason to depart

from our earlier decision denying authorization, and we therefore deny his request

for authorization to file a second or successive motion.

      W e AFFIRM the district court’s order denying M r. Pedraza’s Rule 59(e)

motion, to the extent that the motion sought recharacterization of a Rule 60(b)

motion already transferred to this court; VACATE the order to the extent that the

motion constituted a second § 2255 motion and should therefore have been

transferred to this court; construe M r. Pedraza’s request for COA as a request to

file a second § 2255 motion, and DENY the same. W e grant M r. Pedraza’s

motion to proceed on appeal in forma pauperis.




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