UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY E. MCAFEE, SR., Plaintiff–Appellant,

v. WARDEN PLOUGH; and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Defendants–Appellees. No. 10-1275 (D.C. No. 1:09- CV-00833-ZLW) (D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , EBEL , and LUCERO , Circuit Judges.

Anthony McAfee, a federal prisoner pro ceeding pro se, seeks a certificate of appealability (“COA”) to contest the district c ourt’s denial of his Federal Rule of Civil Procedure 60(b) motion. Because the district court did not have ju risdiction, we deny McAfee’s request and remand to the district court.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### October 28, 2010

Elisabeth A. Shumaker Clerk of Court-2- I McAfee was found guilty in 2000 of four charges relating to an incident in which he drove his car into a telephone pole, killi ng one of his passengers and seriously injuring the other. After being denied relief by the Colorado Court of Appeals on both direct appeal and collateral review, McAfee filed a 28 U.S.C. § 2254 habeas petition in federal district court on April 10, 2009. Findin g his petition time-barred under 28 U.S.C. § 2244(d), the district court denied the petition. McAfee then filed another pleading, which

the district court construed as a motion to reconsider under Federal Rule of Civil Procedure 59(e) and denied. McAfee filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). Th e district court once again denied relief. Finally, McAfee filed another Rule 59(e) mo tion and the district court denied him reconsideration. McAfee now seeks a COA to appeal the latter two orders.

II A litigant must obtain a COA to appeal the denial of a Rule 60(b) motion seeking to reopen a § 2254 proceeding. See Spitznas v. Boone , 464 F.3d 1213, 1217-18 (10th Cir. 2006). However, before turning to the appropriateness of a COA, we must first determine whether McAfee’s Rule 60(b) moti on is actually a “second or successive” habeas petition over which the district c ourt would lack jurisdiction absent prior

authorization from this court. See 28 U.S.C. § 2244(b)(3)(A). Distinguishing between a true Rule 60(b) motion and a second or successive habeas petition turns on the “relief sought, not [the] pleading’s title .” United States v. Nelson , 465 F.3d 1145, 1149 (10th Cir. 2006). If a petitioner seeks “relief from the conviction or sentence,” his claim is a-3- successive habeas petition. Id. at 1147. The same is true if the motion claims that the district court erred on the merits of the habeas petition. See Gonzalez v. Crosby , 545 U.S. 532, 530-32 (2005). However, if a pleadi ng attacks “some defect in the integrity of the federal habeas proceedings,” it should no t be treated as a successive petition. Id. McAfee’s Rule 60(b) motion does not attack the district court’s handling of his habeas petition. As he did in his initial ha beas petition, McAfee outlines the failings of his appellate counsel. Ev en liberally construing his Rule 60(b) motion and his subsequent motion for reconsideration, see Cummings v. Evans , 161 F.3d 610, 613 (10th Cir. 1998) (pro se pleadings sh ould be liberally construed), we cannot discern any claim that attacks the integrity of the federal ha beas proceedings them selves, and his petition

thus remains within the amb it of 28 U.S.C. § 2244(b). Because his Rule 60(b) motion is actually a successive habeas petition, McAfee

must seek leave from this court “authorizing the district court to consider the application.” See 28 U.S.C. § 2244(b)(3)(A). Absent our authorization, the district court does “not even have jurisdiction to deny th e relief sought in the pleading.” Nelson , 465 F.3d at 1148. Thus, the district court should never have reached th e merits of the Rule 60(b) motion.

III For the foregoing reasons, we DENY McAfee’s application for a COA. We

VACATE the district court’s judgment and REMAND the case to the district court to dismiss for lack of jurisdiction, or to transfer the mo tion to this court as a request to file a second or successive habeas petition pu rsuant to 28 U.S.C. § 2244(b)(4).-4- Because McAfee has failed to advance “a reasoned, nonfrivol ous argument on the law and facts in support of the issues rais ed on appeal,” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991), we also DENY his motion to proceed in forma pauperis.

Entered for the Court,

Carlos F. Lucero Circuit Judge