UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LUIS ALTAMIRANO-QUINTERO, Defendant - Appellant. No. 12-1359 (D.C. Nos. 1:04- CR-00188-REB-MJW-2 and 1:04-CR-00188-MJW-2) (D. Colo.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN, and MATHESON , Circuit Judges.

Defendant Luis Altamirano-Quintero, a federal prisoner appearing pro se, 1 seeks review of the district court’s denial of hi s Rule 60(b) motion. His motion challenged the district court’s dismissal of the two claims in his habeas petition br ought under 28 U.S.C.

* After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2) a nd 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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.

1 Because Mr. Altamirano-Quintero is proceeding pro se, we construe his pleadings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007); see also United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a pro se litigant’s] arguments liberally; th is rule of liberal constructi on stops, however at the point at which we begin to serve as his advocate.”). FILED United States Court of Appeals Tenth Circuit 

### December 6, 2012 Elisabeth A. Shumaker Clerk of Court2 § 2255. We deny Mr. Altamirano-Quintero’s request for a certificate of appealability (“COA”) on his first claim for a Fourth Ame ndment violation. We construe his second claim for ineffective assistance of counsel (“IAC”) as an app lication for authorization to file a second or successive § 2255 petition, which we also deny. I. BACKGROUND A. Mr. Altamirano-Quintero’s Guilty Plea and Direct Appeal Mr. Altamirano-Quintero was charged with federal drug violations after a search of his vehicle produced incriminating evid ence. He moved to suppress the evidence, arguing that he did not consent to the search . In June 2005, following his unsuccessful suppression hearing, he pled guilty to one count of conspira cy to possess with intent to distribute 500 grams or more of methamphetami ne as part of a plea agreement with the Government. The plea agreement emphasized th at the court had discretion to sentence Mr. Altamirano-Quintero as the law allowed and that, on ce Mr. Altamirano-Quintero pled guilty, he waived th e ability to appeal his gu ilt for this offense, but not his sentence. At his change of plea hearing, Mr. A ltamirano-Quintero expressed two concerns about his plea agreement: 1) that he felt pr essured to accept or reject the agreement within 24 hours, and 2) that he still had unresolved concerns about a canine sniff of his vehicle. The district court resolved each of these concerns at the hearing. First, Mr. Altamirano-Quintero said under oath that he had sufficient time to read, review, discuss, and consider his plea agreement and to discuss it with his attorney. Second, his attorney and the judge addressed his questions about the canine sniff, and Mr. Altamirano-Quintero said he was satisfied w ith the response and prepared to proceed3 with his plea. Finally, Mr. A ltamirano-Quintero said under oa th that he understood he was waiving his right to appeal his guilt and th at he was satisfied w ith his attorney. In a letter dated August 17, 2005, Mr. Altamirano-Quintero expressed to the district court how “surprised” and upset he ha d been when he receiv ed the plea agreement offer in June 2005 and learned that it required him to waive his right to appeal his Fourth Amendment suppression issue. The court direct ed that copies of the letter be served on both counsel for the government and for the defe ndant, but did nothing else to address the letter. On March 10, 2006, Mr. Alta mirano-Quintero moved to withdraw his guilty plea under Fed. R. Crim. P. 11( d) (“A defendant may withdr aw a plea of guilty or nolo contendere . . . after the court accepts the plea but before it imposes sentence if . . . the defendant can show a fair and just reason for requesting the withdrawal.”). In his motion, he argued that his guilty plea was not voluntary because 1) he though t he was guaranteed a shorter sentence if he pled guilty; 2) he di d not know that he wa s waiving his right to appeal his suppression issue; and 3) he had in effective assistance of counsel. Based on the Mr. Altamirano-Quintero’s testimony at the plea change hearing and his letter to the court expressing his understanding of the waive r, the district court denied his motion. Mr. Altamirano-Quintero was sentenced to 10 years of imprisonment. This court affirmed his sentence on direct appeal. United States v. Altamirano-Quintero , 511 F.3d 1087, 1099 (10th Cir. 2007).4 B. Mr. Altamirano-Quinter o’s First § 2255 Motion On September 2, 2008, Mr. Altamirano- Quintero filed a § 2255 motion. He asserted that 1) the search of his person an d his vehicle violated the Fourth Amendment and 2) his trial attorneys had been ine ffective on that issue by not refuting the Government’s argument that the encounter had been consensual in the motion to suppress or his motion to withdraw his plea. 2 The motion was referred to a magistrate judge who rejected both claims. First, the magistrate judge found that Mr. Altamirano-Qu intero had waived hi s right to raise the Fourth Amendment claim on collateral review be cause he did not raise it on direct appeal and did not show cause that mi ght excuse his failure to raise the claim on direct appeal. Even if the Fourth Amendment claim could be raised, the magistrate judge found that it was meritless. Second, on the IAC claim, Mr. Altamirano-Quin tero argued that hi s counsel, in his written motion to suppress, failed to argue for the suppression of evidence from Mr. Altamirano-Quintero’s person and room, and hi s counsel should not have conceded that Mr. Altamirano-Quintero consented to the vehi cle search. He contends that, because of

2 Mr. Altamirano-Quintero also claimed th at two other appointed attorneys and his appellate counsel were ineffective. The ma gistrate judge found meritless the claims about the two other attorney s who were appointed during his motion to withdraw his guilty plea and his sentencing. Mr. Altami rano-Quintero argued that his appellate counsel was ineffective for failing to raise hi s IAC claims on direct appeal, but as this court has repeatedly held and the magistrate judge recognized in his recommendations, IAC claims should be brought in § 22 55 motions and not on direct appeal. United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). Mr. Altamirano-Quintero did not challenge the court’s ruling on these additiona l claims in any of his successive motions, so they are not before us now.5 his attorney’s concession on the vehicle search consent, “the court rendered [his suppression hearing] testimony su spect” and gave it no “credibility.” ROA, Vol. II at 30. Mr. Altamirano-Quintero also argued that his counsel failed to properly investigate the issues and present them to the court, which le ft him with no choice but to plead guilty. The magistrate judge found, applying the Strickland v. Washington , 466 U.S. 668 (1984), test for IAC, that M r. Altamirano-Quintero did not establish that his counsel’s actions “fell below an objective standard of reasonableness” or that the outcome of the proceeding would have changed but for his co unsel’s “unprofessional errors.” ROA, Vol. II at 140-41; see also Strickland , 466 U.S. at 688, 694. The magistrate judge found that counsel fully pursued the issue of cons ent at the suppression hearing and that the district court had correctly “addressed and ruled on [Mr. Altamirano-Quintero’s] consent to the three searches.” ROA, Vol. II at 143. The district court adopted the report a nd recommendations of the magistrate judge and denied Mr. Altamirano-Quintero’s § 2255 motion. Mr. Altamirano-Quintero requested a COA, which this court denied. United States v. Altamirano-Quintero , 379 F. App’x 764 (10th Cir. 2010). C. Mr. Altamirano-Quintero’s Second § 2255 Motion 1. Denial of the § 2255 Motion On January 19, 2011, Mr. Altamirano-Quintero filed another § 2255 motion, which he argued was not a sec ond or successive motion because it did not directly attack his conviction but instead challe nged the district court’s deni al of his previous § 2255 motion.6 The district court determined that Mr. A ltamirano-Quintero had filed a second or successive § 2255 motion because he challenged the court’s merits resolution of the IAC claim in his first § 2255 motion. Before a federal prisoner may file a second or successive § 2255 motion, the prisoner must fi rst obtain an order from the circuit court authorizing the district court to consider the motion. 28 U.S. C. §§ 2244(b)(3)(A), 2255(h). Because Mr. Altamira no-Quintero had failed to obtain such an authorization, the district court dismissed his motion for lack of jurisdiction and denied his request for a COA. 2. Denial of the Second or Successive § 2255 Motion Mr. Altamirano-Quintero next requested this court to authorize a second or successive § 2255 motion. We denied this request. We held that he had failed to demonstrate that his claims were based on “n ewly discovered eviden ce that, if proven and viewed in light of th e evidence as a whole would be suffi cient to establish by clear and convincing evidence that no reas onable factfinder would have found [him] guilty of the offense,” pursuant to § 2255(h)(1 ). Docket No. 312. We fu rther held that he had failed to show that his claims relie d on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Cour t, that was previously unavailable,” as allowed under § 2255(h)(2). Id. 3. Denial of the Rule 60(b) Motion Mr. Altamirano-Quintero then filed a Fed. R. Civ. P. 60(b) motion in the district court requesting relief from that court’s ju dgment denying his s econd § 2255 motion. First, he argued that the district court faile d to address whether the search violated his7 Fourth Amendment rights. Seco nd, he claimed that the dist rict court had violated the “law of the case” when it ruled on his s econd § 2255 motion that his counsel had effectively addressed the issue of consent. He argued that this ruling contradicted the judge’s comments at his suppression hearing expressing doubt about whether the validity of his consent was properly before the court. The district court denied the 60(b) moti on. It determined that Mr. AltamiranoQuintero’s Fourth Amendment argument was proper for a 60(b) motion because it challenged the integrity of his habeas procee dings. But the court found that the claim lacked merit. The court further explained th at the IAC claim was properly classified as a second or successive § 2255 claim because it rea sserted his federal basis for relief in his first § 2255 motion. Thus, the court had no jurisdiction to hear that claim without authorization from this court. II. DISCUSSION A. Treatment of Rule 60(b) Motions Following Deni al of Habeas Petitions Rule 60(b) of the Federal Rules of Civil Procedure allows a party to seek relief from a final judgment in a limited set of circumstances, including mistake, newly discovered evidence, fraud, or “any other reas on that justifies relief.” A Rule 60(b) motion filed after a habeas petition has been de nied is properly characterized as a second or successive habeas petition “if it in substanc e or effect asserts or reasserts a federal basis for relief from the petiti oner’s underlying conviction.” Spitznas v. Boone , 464 F.3d 1213, 1215 (10th Cir. 2006) (citing Gonzalez v. Crosby , 545 U.S. 524, 531 (2005)). But if it “(1) challenges only a procedural ruling of the habeas court which precluded a merits8 determination of the habeas application; or (2 ) challenges a defect in the integrity of the federal habeas proceeding” and “does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition,” th en it should be considered as a Rule 60(b) motion. Id. at 1216 (quotations omitted). We must treat claims that parties proper ly raise under Rule 60(b) separately from claims that should be classifi ed as second or successive hab eas motions. “If the district court correctly treated the motion

. . . as a ‘true’ Rule 60(b) mo tion and denied it, we will require the movant to obtain a [COA] before proceeding w ith his or her appeal.” Id. at 1217-18 (“[I]t would be illogical that a COA would be required to appeal from a habeas judgment, but not from the district court’s order denying Rule 60(b) relief from such a judgment.”); see also Dulworth v. Jones , 496 F.3d 1133, 1136 (10th Cir. 2007) (holding that “all appeals from final orders in habeas cases [must] meet the COA standard to proceed). If the district court correctly treats a Ru le 60(b) motion as a second or successive petition and transfers it to us for authoriza tion, no COA is requi red because “the COA requirement applies only when the applic ant desires to pursue ‘an appeal.’” Spitznas , 464 F.3d at 1218 (quoting 28 U.S. C. § 2253(c)(1)). “Filing a sec ond or successive petition, or seeking authorization to file such a petition, is not an appeal.” Id. Thus, a COA is not required for this court to determine whethe r a second or successi ve petition should be authorized.9 B. Fourth Amendment Claim The district court found that Mr. Altamira no-Quintero’s first claim was a true Rule 60(b) claim because it alleged that the district court had failed to consider the claim in his § 2255 motion that the search violat ed his Fourth Amendment rights. See id. at 1225 (ruling that petitioner’s contention that the distri ct court ignored his claim was a true Rule 60(b) claim because it asserted a defect in the integrity of the habeas proceeding). Nonetheless, the court found that Mr. Alta mirano-Quintero’s Fourth Amendment claim was procedurally barred because the court ha d already addressed it in ruling on his first § 2255 motion. In addition, the court conclu ded that even if it had erred by failing to address the Fourth Amendment claim, the error was harmless because Mr. Altamirano-Quintero unconditionally pled guilty, waiving any Fourth Amendment claims. Mr. Altamirano-Quintero seeks a COA to appeal this Rule 60(b) ruling. The district court’s procedur al bar and waiver determinat ions were procedural as opposed to merits decisions. Under these circumstances, a COA may be granted only when the petitioner shows “that jurists of reason would find it de batable whether the petition states a valid claim of the denial of a constitutional right and . . . whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Defendants waive the right to challenge th eir convictions on collateral attack when they have pled guilty because “‘a voluntary and intelligent plea of guilty made by an accused person, who has been advised by co mpetent counsel, may not be collaterally attacked.’” United States v. Cockerham , 237 F.3d 1179 , 1182 (10th Cir. 2001) (quoting10 United States v. Broce , 488 U.S. 563, 574 ( 1989)). Mr. Altamirano-Quintero is therefore procedurally barred from bringi ng a claim under § 2255 attacking the merits of his conviction, including the district court’ s decision to deny his motion to suppress on Fourth Amendment grounds. Under Slack , the relevant question is whether reasonable jurists could debate the correctness of the district court's ruling that Mr. Altamirano- Quintero’s Fourth Amendment claim was waived. Our answer is no. Accordingly, we decline to grant a COA to Mr. Altamirano-Quintero on this claim. C. Ineffective Assistance of Counsel Claim We treat a post-conviction motion filed after an initial § 2255 motion as a successive § 2255 motion—which must comp ly with § 2255(h)’s authorization requirement—if it in substance or effect assert s or reasserts a federal basis for relief from the prisoner’s conviction. See United States v. Nelson , 465 F.3d 1145, 1148–49 (10th Cir. 2006); Spitznas , 464 F.3d at 1215. We treat a Rule 60(b) motion as a second or successive habeas petition when it “challeng[es] the habeas cour t’s previous ruling on the merits of that claim.” Id. at 1216. This is precisel y what Mr. Altamirano-Quintero attempted to do in his Rule 60(b) IAC claim. The district court found that Mr. Altami rano-Quintero’s IAC claim was not proper for a Rule 60(b) motion becau se it neither “challenges only a procedural ruling” nor “challenges a defect in the integrity of the federal habeas petition.” Id. We agree with the district court’s conclusion that Mr. A ltamirano-Quintero’s Rule 60(b) IAC claim constitutes a successive habeas claim.11 Mr. Altamirano-Quintero’s Rule 60(b) IAC claim challenges the merits of the district court’s ruling on th e second § 2255 motion. See id. He argues here that there is an inconsistency between the district court’ s determination that hi s counsel effectively addressed the issue of his consent to be s earched and the district court’s expressing doubts at the suppression hearing about whet her the issue was properly raised. The district court addressed this issue when it ru led on his first § 2255 motion. We therefore construe Mr. Altamirano-Quintero’s Rule 60(b) IAC claim as an application for authorization to file a second or successive § 2255 petition. We may authorize a second or successi ve § 2255 petition only when the petition contains “newly discovered evidence” or “a new rule of constitutio nal law.” 28 U.S.C. § 2255(h). Mr. Altamirano-Quinte ro does not allege that his claim is based on either. He therefore has failed to satisfy the requireme nts for authorizing a second or successive § 2555 petition. III. CONCLUSION We deny a COA on the first claim for a Fourth Amendment violation alleged in Mr. Altamirano-Quintero’s Rule 60(b) motion. We construe his second Rule 60(b) claim for IAC as an application to file a second or successive § 2255 petition, which we also deny. This denial “shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). We also deny Mr. Altamirano-Qu intero’s motion to proceed in forma pauperis . He has failed to advance “a reasoned, nonfrivolo us argument on the law and facts in support12 of the issues raised [in this matter].” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge