UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CLARENCE LEE DAVIS, Defendant-Appellant. No. 13-5035 (D.C. No. 4:04-CR-00085-JHP-2) (N.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HARTZ , O’BRIEN , and TYMKOVICH , Circuit Judges.
Clarence Lee Davis, a federal prisoner proceeding pro se, se eks a certificate of appealability (COA) to appeal the di strict court’s decision construing his Fed. R. 60(b) motion as an unauthorized second or successive § 2255 motion and dismissing it for lack of jurisdiction. We deny a COA and dismiss the matter. Mr. Davis was convicted of conspir acy to commit armed bank robbery; aiding and abetting an attempted armed bank robbery ; brandishing, carrying, and possessing a firearm in furtherance of a crime of vi olence; and being a felon in possession of a firearm. He was senten ced to 360 months’ imprisonm ent. We affirmed his

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 6, 2013 Elisabeth A. Shumaker Clerk of Court- 2 - convictions and sentence on direct appeal. See United States v. Davis , 437 F.3d 989, 991 (10th Cir. 2006). Mr. Da vis filed a § 2255 motion in 2006. The district court denied the motion, and we denied Mr. Davis’s request for a COA. See United States v. Davis , 259 F. App’x 88, 88 (10th Cir. 2007). In October 2012, Mr. Davis filed a moti on seeking relief under Fed. R. Civ. P. 60(b)(4) and (b)(6). The district court conc luded that the 60(b) motion constituted an attempt to file a second-o r-successive § 2255 motion without prior authorization and dismissed the motion for lack of jurisdicti on. Mr. Davis now seeks a COA to appeal from that decision. To obtain a COA, Mr. Davis must show that “jurists of reason would find it debatable whether the district court wa s correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) . A prisoner may not file a second-or-successive § 2255 motion unless he first obtains an order from the ci rcuit court authorizing the district court to consider the mo tion. 28 U.S.C. § 2244(b)(3)(A); id . § 2255(h). Absent such authorization, a district court lacks jurisdiction to a ddress the merits of a second-or-successive § 2255 motion. In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). A 60(b) motion should be treated as a second-or-successive § 2255 motion “if it in substance or effect as serts or reasserts a federa l basis for relief from the petitioner’s underlying conviction.” Spitznas v. Boone , 464 F.3d 1213, 1215 (10th Cir. 2006). A 60(b) mo tion may not be treated as a successive § 2255 motion if- 3 - it “challenges a defect in the integrity of the federal habeas proceeding,” as long as “such a challenge does not itself lead inex tricably to a merits -based attack on the disposition of a prior [§ 2255 motion].” Id . at 1216. In his 60(b) motion, Mr. Davis did not raise a claim about a defect in his federal habeas proc eeding as required by Spitznas . Instead, Mr. Davis raised claims about procedural defects in the identification process that occurred before trial, counsel’s ineffectiveness fo r not objecting during trial to evidence resu lting from the faulty identification process, and the district court’s failure to conduct an evidentiary hearing on the issue when testimony suggested the identification pr ocess was flawed. See R. Vol. 1 at 20-22; see also Aplt. Op. Br. at 2. Mr . Davis argued that, if a hearing had been held, the court w ould have suppressed the unconstitutional identification evidence and there would have been no probable cause to arrest him. R. Vol. 1 at 30. The district court properly recogni zed that Mr. Davis’s new arguments constitute second-or-successive claims because they assert a basis for relief from his underlying conviction. Reasonable jurists could not deba te that the district court was correct in its procedural ruling to treat Mr. Davis’s 60(b) moti on as an unauthorized second-or-successive § 2255 mo tion. Accordingly, we deny a COA and dismiss this

matter.- 4 - We grant Mr. Davis’s motion for l eave to proceed on appeal without prepayment of costs and fees. Entered for the Court

ELISABETH A. SHUMAKER, Clerk