* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 prese nted in prior applications. As in previous filings and as the district court recog nized, 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 h is motion for resettlement, vacation or modification of the district court’s or der 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. Pet itioner filed his third petition for habeas relief on March 27, 1996, the district c ourt denied the petition on September 27, 1996, and this court dismissed the ap peal. On December 17, 1997, petitioner filed a motion for relief from the distr ict court’s denial of his habeas petition pursuant to Fed. R. Civ. P. 60(b). The di strict 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 o f 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 a fter 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 brie f 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 do es not allege or show “that the claim relies on a new rule of constitutional law, m ade retroactive to cases on collateral review by the Supreme Court, that was pr eviously 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 o f September 27, 1996, disposing of petitioner’s unauthorized fourth petit ion for habeas relief, and we-4-

DENY the implied application for leave to file a fo urth petition in the district court. The mandate shall issue forthwith.

Entered for the Court

Robert H. Henry Circuit Judge