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In re Lindsey

September 16, 2009

IN RE JAMES EARL LINDSEY, MOVANT.


(D.C. Nos. 5:06-CV-4143-RDR & 5:03-CR-40011-RDR-1). (D. Kan.).

Per curiam.

ORDER

Before TACHA, EBEL, and HARTZ, Circuit Judges.

James Earl Lindsey, a federal prisoner appearing pro se, filed a Fed. R. Civ. P. 60(b) motion claiming that the district court erred in deciding his 28 U.S.C. § 2255 motion without granting him an evidentiary hearing. The district court concluded that the claims required authorization under § 2255(h) as a second or successive motion and transferred the motion to this court.

Mr. Lindsey has moved to remand, arguing that he challenges only the integrity of the federal proceedings, and thus his assertions do not require authorization under § 2255(h). We disagree, and therefore we deny the motion to remand.

Background

In 2004, a jury convicted Mr. Lindsey of drug and firearms offenses, and this court affirmed. United States v. Lindsey, 160 F. App'x 708, 711 (10th Cir. 2005). A year later, raising numerous claims for relief, Mr. Lindsey filed a motion under § 2255 to vacate, set aside, or correct his sentence. Concluding that Mr. Lindsey was not entitled to relief, the district court dismissed the § 2255 motion without requiring the United States to answer and without conducting an evidentiary hearing, a procedure permitted by § 2255(b) and Rule 4(b) of the Rules Governing § 2255 Proceedings. This court determined that Mr. Lindsey's appeal was untimely and dismissed the appeal without reaching the merits of his § 2255 claims. United States v. Lindsey, 264 F. App'x 710, 711-12 (10th Cir. 2008), cert. denied, 129 S.Ct. 900 (2009).

More than two years after the district court dismissed his § 2255 motion, Mr. Lindsey filed a Rule 60(b)(6) motion for relief from judgment. In his Rule 60(b) motion, he alleged that his § 2255 claims were deserving of an evidentiary hearing, and it was an error to dismiss the motion without holding such a hearing. He recognized that a merits-based challenge requires this court's authorization as a second or successive § 2255 motion, see Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); Spitznas v. Boone, 464 F.3d 1213, 1216-17 (10th Cir. 2006), but he characterized his arguments as procedural in nature, asserting they "deal[] primarily with some irregularity or procedural defect in the procurement of the judgment." Motion for Relief from Judgment, Dist. Ct. Doc. 219 at 2.

Noting that in the § 2255 proceeding it had "specifically found that defendant's § 2255 motion should be denied without an evidentiary hearing because the record 'conclusively shows that defendant is not entitled to relief on his claims,'" the district court held that Mr. Lindsey's Rule 60(b) claims were in reality an attack on the court's merits determination. Order of June 29, 2009, Dist. Ct. Doc. 220 at 3 (quoting Memorandum and Order of January 29, 2007, Dist. Ct. Doc. 190 at 23). Thus, the district court held the claims required authorization under § 2255(h) and transferred the motion to this court. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Mr. Lindsey then moved to remand the matter to the district court.

Analysis

Congress has placed limits on second or successive 28 U.S.C. § 2254 applications and § 2255 motions, allowing them to proceed only in specified circumstances and only with a circuit court's prior authorization. See 28 U.S.C. §§ 2244(b), 2255(h). In Gonzalez, a case involving a § 2254 application, the Supreme Court recognized that a Rule 60(b) motion may be subject to the requirements for second or successive applications if it asserts, or reasserts, a "claim," that is, "an asserted federal basis for relief from a state court's judgment of conviction." 545 U.S. at 530. Thus, "a Rule 60(b)(6) motion in a § 2254 case is not to be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant's state conviction." Id. at 538.

A motion can . . . be said to bring a "claim" if it attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief. That is not the case, however, when a Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.

Id. at 532 (footnote omitted). The term "on the merits" refer[s] to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. ยงยง 2254(a) and (d). When a movant asserts one of those grounds (or asserts that a previous ruling ...


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