UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DEANDRE ANTONIO HOPKINS, Defendant - Appellant. No. 19-5070 (D.C. Nos. 4:16-CV-00649-JHP-FHM and 4:12-CR-00050-JHP-3) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY 

________________ _________________ Before MATHESON , McKAY , and BACHARACH , Circuit Judges.

________________ _________________ Appellant Deandre Hopkins seeks a certif icate of appealability to appeal the district court’s denial of his Fed. R. Civ. P. 60(b) motion, in which he sought reconsideration of the court’s previous deni al of his 28 U.S.C. § 2255 habeas motion. In 2013, Appellant was convicted after a jury trial on multiple counts—including for using a firearm during a crime of viol ence, in violation of 18 U.S.C. § 924(c)— stemming from his role in a series of arme d robberies in Tulsa, Oklahoma, and was sentenced to 544 months in prison. We later affirmed Appellant’s convictions. See United States v. Hopkins , 608 F. App’x 637 (10th Cir. 2015).

 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### December 23, 2019
Elisabeth A. Shumaker Clerk of Court2 In 2016, Appellant filed his habeas mo tion, arguing his appellate counsel was ineffective for failing to challeng e his § 924(c) conviction under Rosemond v. United
States , 572 U.S. 65 (2014), whic h had been decided during th e pendency of Appellant’s appeal. 1 Rosemond held that a defendant cannot be conv icted of aiding and abetting a § 924(c) violation unless he has advance knowledge one of his confederates will carry a firearm and that a trial court errs by giving an aiding-and-ab etting jury instruction that fails to account for the adva nce-knowledge requirement. Id. at 77–78, 81. Appellant argued that his § 924(c) conviction was prem ised on aiding-and-ab etting liability; that, under Rosemond , the trial court had given an erroneou s instruction; and that appellate counsel’s failure to raise the Rosemond issue amounted to in effective assistance. The district court acknowledged that Appe llant “could not be convicted for aiding and abetting a § 924(c) violation under Rosemond .” (Suppl. R. at 80.) Nevertheless, the court concluded that Appellant “was properly convicted of the § 924(c) violation under Pinkerton v. United States , 328 U.S. 640 (1946),” which holds that, “[d]uring the existence of a conspiracy, each member of th e conspiracy is legally responsible for the [reasonably foreseeable] crimes of his fellow conspirators committed in furtherance of the conspiracy.” ( Id. (internal citations omitted)). Given the facts of the case, the court determined “it was entirely fo reseeable that one or more of [Appellant]’s accomplices”

1 Appellant’s initial habeas motion incl uded 21 separate claims, and he later supplemented the motion w ith three additional ground s for relief, including the Rosemond issue. The district court rejected the 21 claims Appellant initially raised because they were conc lusory in nature and devoid of fa ctual averments and rejected the other two grounds for relief on the merits. See United States v. Fisher , 38 F.3d 1144, 1147 (10th Cir. 1994). Appella nt only seeks to raise the Rosemond issue on appeal.3 would use a firearm during one of the robberies. ( Id. at 14.) Thus, the court concluded,
any Rosemond error was inconsequential, and appellate counsel’s failure to raise the issue on appeal did not deprive Appellant of effective assistance. 2 Accordingly, the court denied Appellant’s § 2255 motion. Appella nt did not seek to appeal the denial. Nearly two years later, in 2019, Appellant filed a Rule 60(b) motion for relief from the district court’s denial of his § 2255 mo tion. He argued that his § 2255 proceeding was defective because the court, in assessing the Rosemond issue, “failed to observe and apply the correct and controlling” law, “r esulting in the premature and incorrect termination of the § 2255” proc eeding. (R. vol. VI at 35; see also id. at 36–37 (asserting that the court “used the wrong law,” resulting in a “defect in the inte grity of the federal § 2255 []procedure”).) In support, Appellant pointed to Tenth Circu it cases holding that a general jury verdict must be vacated where it is unclear whether th e jury relied on an instruction or a theory of liability that is erroneous. 3 Appellant thus asked the court to “reopen the previous § 2255 pr oceedings” and to re-assess his Rosemond claim “observing and applying the correct circuit []law.” ( Id. at 37.)

2 See United States v. Hill , 743 F. App’x 241, 244 (10th Cir. 2018) (explaining, in appeal by one of Appellant’s co-defendants, th at, where “the jury wa s properly instructed on the requirements of Pinkerton co-conspirator liability,” “i f the evidence was sufficient to convict [the defendant] of violating § 924(c) on a theory of Pinkerton co-conspirator liability, [the defendant] can’t show his atto rney’s failure to challenge his conviction under Rosemond —which concerns only aiding an d abetting—prejudiced him”).

3 See generally United States v. Holly , 488 F.3d 1298, 130 4–07 (10th Cir. 2007) (discussing availability of ha rmless-error analysis when th e appellate court confronts “ an instructional error on one of two indepe ndent alternative gr ounds for conviction” )4 The district court summarily denied Appe llant’s Rule 60(b) motion in a minute order and denied his subsequent motion for a COA. Appellant now seeks to challenge the denial of his Rule 60(b) motion. 4 A prisoner seeking to appeal from the de nial of a Rule 60(b) motion—regardless of whether it is a “true” Rule 60(b) moti on—in a § 2255 proceeding must first obtain a
COA. See United States v. Duran , 454 F. App’x 671, 674 (1 0th Cir. 2012). Ordinarily, if the district court denies a post-judgment motion on the merits, our inquiry focuses on whether or not the prisoner “‘demonstrated that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” United States v. Springer , 875 F.3d 968, 972 (10th Cir. 20 17) (brackets omitted) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). However, we may also “deny a COA if there is a plain procedural bar to habeas relief, even thou gh the district court did not rely on that bar.” Id. at 981. In evaluating the district court’s denial of a Rule 60(b) motion in a habeas case, “[o]ur first task . . . is to consider . . . the issues raised in the [Rul e 60(b)] motion in order to determine whether it represents a second or successive [habeas motion or] a ‘true’ Rule 60(b) motion.” Spitznas v. Boone , 464 F.3d 1213, 1224 (10th Cir. 2006). A prisoner may not file a second or successive § 2255 motion unless he first obtains an order from this court authorizing the district court to consider the motion. See Springer , 875 F.3d at

4 Appellant’s notice of appeal designates th e denial of his Rule 60(b) motion as the only order he seeks to appeal. Our review is limited to that order. See Fed. R. App. P. 3(c)(1)(B); Scott v. Weaver , 736 F. App’x 715, 718 (10th Cir. 2018).5 972. Absent such authorization, a district co urt lacks jurisdiction to address the merits of a second or successive § 2255 motion. Id. A Rule 60(b) motion s hould be treated as a second or successive § 2255 motion “if it in s ubstance or effect asserts or reasserts a federal basis for relief from the pe titioner’s underlying conviction.” Spitznas , 464 F.3d at 1215. A Rule 60(b) motion may not be tr eated as a successive § 2255 motion if it “challenges a defect in the inte grity of the federal habeas proceeding,” so long as “such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior [§ 2255 motion].” Id . at 1216. “It is the relief sought, not [the] pleading’s title, that determines whether the plead ing is a § 2255 motion.” United States v. Nelson , 465 F.3d 1145, 1149 (10th Cir. 2006). Here, Plaintiff’s Rule 60(b) motion amounts to a seco nd or successive § 2255 motion. Although he tries to dress it in the garb of a procedural defect in the proceeding’s integrity, at botto m, his motion is a merits-bas ed attack on the district court’s rejection of the Rosemond claim he raised in his § 2255 motion. No matter how it is characterized, an argument that the court applied the wron g substantive law to a claim is a challenge to the court’s me rits-based decision on that clai m, a clear indication that the motion is actually a second or successive § 2255 motion. See United States v. Bell , 622 F. App’x 770, 771 (10th Cir. 2015) (holding argument that “d istrict court applied[] the wrong legal standard in reviewing [a prisone r’s] claim . . . requires a determination that the district court incorrectly ru led on the merits” of the claim); In re Pickard , 681 F.3d 1201, 1206 (10th Cir. 2012) (“[A] Rule 60(b) motion is actually a second-or-successive6 petition if the success of the motion depend s on a determination that the court had incorrectly ruled on the merits in the habeas proceeding.”). Because Appellant’s Rule 60(b) motion was a second or successive § 2255 motion, which was not authorized, the district court lacked jurisdiction to consider it and should have either dismissed it o r, if in the interests of justice, transferred it to this court. See Faircloth v. Raemisch , 785 F. App’x 508, 511 (10th Cir. 2019). As there was a plain procedural bar to the habeas relief Appellant sought through his Rule 60(b) motion, we conclude reasonable jurists could not debate whether he would prevail on appeal. See id. Accordingly, we DENY Appellant’s request for a COA and DISMISS this appeal with instructions to the district court to vaca te its denial of Appella nt’s Rule 60(b) motion and to either dismiss the motion for lack of ju risdiction or to transfer it to this court. Appellant’s motion to proceed in forma pauperis on appeal is GRANTED

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Entered for the Court
Monroe G. McKay Circuit Judge