* This order and judgment is not binding precedent, except under the

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

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 15 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSEPH MACASTLE JACKSON,

Petitioner-Appellant,

v.

RON CHAMPION,

Respondent-Appellee.

No. 98-6023

(D.C. No. CIV-96-637-C)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 We do not decide whether 28 U.S.C. § 2244(b)(1) required dismissal of this

habeas petition for presenting claims already presented in prior applications. As

in previous filings and as the district court recognized, it is difficult to decipher

what petitioner is arguing. Thus, it is difficult to determine whether petitioner

(continued...)

-2-

Petitioner appeals the district court’s denial of his motion for resettlement,

vacation or modification of the district court’s order denying his 28 U.S.C. § 2254

habeas petition. Petitioner filed his first habeas petition on October 28, 1988, and

it was denied on the merits. His second petition, filed January 10, 1991, was

dismissed as abusive, and this court affirmed. Petitioner filed his third petition

for habeas relief on March 27, 1996, the district court denied the petition on

September 27, 1996, and this court dismissed the appeal. On December 17, 1997,

petitioner filed a motion for relief from the district court’s denial of his habeas

petition pursuant to Fed. R. Civ. P. 60(b). The district court denied the motion,

and petitioner appeals.

We treat petitioner’s Rule 60(b) motion as his fourth habeas petition under

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), because

“Rule 60(b) cannot be used to circumvent restraints on successive habeas

petitions.” Lopez v. Douglas , 141 F.3d 974, 975 (10th Cir. 1998) (quotation

omitted). Petitioner filed the Rule 60(b) motion after the effective date of

AEDPA. Consequently, he was required to obtain authorization from this court

before filing a successive habeas petition in the district court. 1 See Lopez ,
1

(...continued)

has presented these claims in a prior application.

-3-

141 F.3d at 975; 28 U.S.C. § 2244(b)(3). We must, therefore, vacate the district

court’s order because it did not have jurisdiction to decide the unauthorized

petition. See Lopez , 141 F.3d at 975-76.

We construe the notice of appeal and appellate brief in this case as “an

implied application under 28 U.S.C. § 2244(b)(3)(A) for leave to file a [fourth]

habeas petition in the district court.” Id. at 976. Petitioner’s implied application

does not meet the requirements § 2244(b)(2): he does not allege or show “that the

claim relies on a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable;” nor

does he allege or show that “the factual predicate for the claim could not have

been discovered previously through the exercise of due diligence.”

Accordingly, we VACATE the district court’s order of September 27, 1996,

disposing of petitioner’s unauthorized fourth petition for habeas relief, and we
-4-

DENY the implied application for leave to file a fourth petition in the district

court. The mandate shall issue forthwith.

Entered for the Court

Robert H. Henry

Circuit Judge