This order and judgment is not binding precedent, except under *

the doctrines of law of the case, res judicata, and collateral estoppel. The

cou rt gen erally disfavo rs the citation of o rders and judgments; nev ertheless,

an orde r and judgment may be c ited unde r the terms and conditions o f 10th

Cir. R. 36.3. 

F I LED

United States Court of Appeals

Tenth Circuit

August 10, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT O F APPEALS

FOR THE TENTH C I RC U I T

UNITED STA TES OF AM ER IC A,

Plaintiff-Appellee,

 v.

C ARL G. TERRELL,

De f endant-Appe llant.

No. 06-3155

 (D .C . No. 97-CR-10061-M LB)

(D . Kan.)

ORDER AND JUDGM E NT

*

Before LU C ERO, M cCON N ELL, and TYM KOVIC H, Circuit Judg es.

After examining the briefs and appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the

brie fs without ora l a rg ument. See Fed. R. App. P. 34(f); 10th Cir. R.

34.1(G ). The c a se is the re fore ord e red submitted without ora l a rg ument. 

The def en dan t ap pe a ls th e distric t co urt’s dism issa l of Fed . R. Civ . P.

60(b) motion in which he so ught re conside ra tion of the denial o f his
2

previously filed 28 U.S.C. § 2255 motion. We vacate the order for lack of

jurisdiction, co nstrue the de f endant’s notice of appe a l, motion to proc e ed in

forma pauperis, and appellate brief as an implied application for

authorization to file another § 2255 motion, and deny authorization.

The defendant’s original § 2255 motion was denied by the district

court. On appe a l, this court denied a c e rtific a te of appe a lability. See

United States v . Te rr e ll, 6 Fed. Appx. 763 (1 0th Cir. 2001) (unpublished). 

Subsequently, the defendant filed the Rule 60(b) motion which is the subject

of this appeal, arguing that the evidence was insufficient, that one of the

sta tutes he wa s convicted of violating, 18 U.S.C. § 922(g)(3), is

unconstitutional, that the criminal judgment is void, and that recent cases

from othe r c ircuits sh ow tha t the distric t co urt and this court e rred in the ir

decisions in the earlier § 2255 proceeding. The district court dismissed the

motion for lack of jurisdiction. (The court should have transferred the

ma tte r to this court a s a suc c e ssive § 2255 motion. See Coleman v. United

States, 106 F.3d 339, 341 (1 0th Cir. 1997)). 

The Rule 60(b) motion constituted a successive motion under the

Antite rrorism and Eff e c tive De a th Pena lty Ac t. See, e.g, United States v.

Torres, 282 F.3d 1241, 1246 (10th Cir. 2002) (“ [T]o a llow a pe titione r to

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

under a different name would s everely erode the procedural restraint
3

imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.”) (citing to Lopez v.

Douglas, 141 F.3d 974, 975 (10th Cir.) (holding tha t a p ost-judgment Rule

60(b)(6) motion, filed in a habeas proceeding, should be treated as “a

se cond habe a s p e tition unde r the Antite rrorism and Eff e c tive De a th Pena lty

Act ....”).

The Supreme Court’s recent decision in Gonzalez v. Crosby , 125 S. Ct.

2641, 2648, 2651 (2005) (holding that a Rule 60(b) motion filed in a § 2254

c a se must be tre a ted a s a su c c e ssive habe a s p e tition if it asse rts or re a ss e rts

a substantive claim to s et aside the petitioner’s state conviction, as opposed

to asserting a d ef ec t “in the integrity of the f ed era l hab ea s proc eedings”),

doe s n ot ch ange this re su lt.

Even if we could a ssume tha t Gonzalez app lies to § 2255 proceeding s,

se e United States v . Scott, 414 F.3d 815, 816 (7th Cir. 2005) (extending the

reasoning of Gonzalez to § 2255 motions which implicate similar concerns

of su c c e ssivene ss), the de f endant’s Rule 6 0(b) motion doe s n ot asse rt a

defect “in the integrity of the [previous] federal habeas proceeding[].” 

Rather, the grounds presented are alleged errors which occurred as part of

the defendant’s trial, and are reassertions of grounds previously raised.

Accordingly, the district court lacked jurisdiction over the motion,

and the distric t court ord e r must be va c a ted. See Lopez v. Douglas, 141 F.3d

at 975-76. However, we will construe the defendant’s notice of appeal and
4

appe lla te brie f a s a reque st for the required authoriz a tion. Id.

We have thoroughly reviewed the matter and conclude that the

defendant has failed to make the prima facie showing required by § 2255 as

amended by the Antite rrorism and Eff e c tive De a th Pena lty Ac t. His

contentions are not based on newly discovered evidence that, “if proven and

viewed in ligh t of the evidence as a who le, wou ld be sufficient to establish

by clear and convincing evidence that no reasonable fact finder would have

found [him ] guilty of the off ense ” or on a “new rule of constitutiona l law ,

made retroactive to cases on collateral review by the Supreme Court, that

was p reviously unav ailab le.” 2 8 U.S.C. § 2255. The g rou nds raised were

all presented p reviou sly either in the defen dan t’s direct app eal or in his first

§ 2255 motion.

The motion to proc eed in forma p au peris is granted, the d istrict court

order is VAC ATED , an d the implied applica tion for authoriz a tion to file

ano ther § 22 55 motion is DENIE D . 

Entered fo r the Court

Per Curiam