* This order and judgment is not binding precedent, e xcept under the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

### DEC 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. CEDRIC DONNELL BROOKS, also known as Scout, also known as Adonis Bailey, Defendant-Appellant. No. 99-1568 (D.C. No. 98-WY-2330-AJ) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , EBEL , and BRISCOE , Circuit Judges.

Defendant Cedric D. Brooks appeals the district cou rt’s order of October 25, 1999, denying his “Motion requesting th at the defendant’s respond to government procedure default be heard in the intere st of justice,” (sic) which he filed after the district court denied his motion to vacate, set aside, or correct his1 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

2 The court issued two orders on March 30, 1999. The first order was ten pages long and contained the court’s analysis of de fendant’s § 2255 motion and its reasons for denying him relief. The second ord er simply recited that the matter was before the court on defendant’s motion pursuantto 28 U.S.C. § 2255 and then stated: “IT IS ORDERED that defendant’s Motion Pur suant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Pers on in Federal Custody should (continued...) -2- sentence under 28 U.S.C. § 2255. 1 In his § 2255 motion, defendant contended that the government wrongfully provided an informant benefits for his information and subsequent testimony, that the gove rnment encouraged the informant not to speak with defense counsel, that t he government used the informant to entrap defendant, that the government relied on testimony from the informant that it knew to be perjured, that the gov ernment failed to inform the grand jury about the informant’s background and cri minal history, and that the government wrongfully withheld a report and an audi otape from defendant. The government moved to dismiss, arguing that defendanthad procedurally defaulted all the claims by failing to raise them on direct appeal. The district court granted defendant a thirty-day extension of time to respond to the government’s arguments. When defendant still had not responded two months after the extended time period, the district court denied the § 2255 motion by order dated March 30, 1999. 22 (...continued)

be and is DENIED .” Dist. Ct. R., File #2, Doc. 107. This second o rder, which did not contain any discussion of the court’s reaso ning or any legal analysis, and which was entered on the docket on April 2, 1999, m et the requirements of Fed. R. Civ. P. 58 for entry of final judgment on defendant’s § 2255 motion. See Clough v. Rush , 959 F.2d 182, 185 (10th Cir. 1992) (“Generally, o rders containing neither a discussion of the court’s reas oning nor any dispositive legal analysis can act as final judgments if they are int ended as the court’s final directive and are properly entered on the docket.”)

. -3- On April 22, 1999, defendant filed his “Motion requ esting that the defendant’s respond to government procedure defaultbe heard in the interest of justice,” in which he sought to establish cause forhis failure to raise the claims on direct appeal by asserting the ineffective assis tance of his appellate counsel. As part of the motion, defendant sought to amend hi s § 2255 motion to add claims of ineffective assistance of trial counsel and inef fective assistance of appellate counsel. Because this motion was filed more than t en days after the district court’s entry of final judgment, and because the mo tion challenged the basis of the district court’s denial of relief and sought to amend the § 2255 petition, we will construe the post-judgment motion as one pursu ant to Rule 60(b) of the Federal Rules of Civil Procedure. See Weitz v. Lovelace Health Sys., Inc. , 214 F.3d 1175, 1178 (10th Cir. 2000) (noting that w e generally construe motions to alter or amend or to reconsider that are filed m ore than ten days after judgment as a motion for relief under Rule 60(b)); Seymour v. Thornton , 79 F.3d 980, 987 (10th Cir. 1996) (holding that a party cannot amenda complaint after judgment-4-

has entered unless he first sets the judgment aside pursuant to Rule 59(e) or Rule 60(b)). We have held that a Rule 60(b) post-judgment motionfiled in a § 2255 proceeding cannot be used to circumvent the restric tions on filing second or successive petitions contained in the Antiterrorismand Effective Death Penalty Act of 1996 (AEDPA). Lopez v. Douglas , 141 F.3d 974, 975 (10th Cir. 1998) (per curiam). Accordingly, we have held that a Rul e 60(b) post-judgment motion should be treated as “a second habeas petition under [AEDPA].” Id. Under AEDPA, defendant was required to obtain prior autho rization from this court before filing a second § 2255 motion in district co urt. 28 U.S.C. § 2244(b), § 2255. This he failed to do. Therefore, the dist rict court did not have jurisdiction to rule on defendant’s second motion, and we must vacate the district court’s order. Lopez , 141 F.3d at 975-76. We will, however, construe defendant’s notice of ap peal and his appellate briefs as an implied application for leave to file a second § 2255 motion in district
court. Id. at 976. Based upon our review of defendant’s impl ied application, we conclude that he has not made the showing necess ary for authorization to file a second § 2255 motion. In particular, defendant h as not established the existence of either “newly discovered evidence that, if prove n and viewed in light of the evidence as a whole, would be sufficient to establi sh by clear and convincing-5-

evidence that no reasonable factfinder would have f ound the movant guilty of the offense,” or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was pr eviously unavailable.” 28 U.S.C. § 2255. Accordingly, the district court’s order of October 25, 1999 disposing of defendant’s unauthorized second petition is VACATED , and defendant’s implied application for leave to file a second § 2255 motio n is DENIED. Defendant’s “Motion Requesting 20 Days to Respond to the Govern ment[’s] Response to the Appell[ant’s] Request for Certificate of Appeal” is GRANTED. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha Circuit Judge