UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. TRAMAINE MONDA LE BEADLES, Defendant - Appellant. No. 16-3106 (D.C. No. 5:10-CR-40118-JAR-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , MATHESON , and BACHARACH , Circuit Judges.

________________ _________________ Tramaine Beadles, proceedi ng pro se, appeals the distri ct court’s denial of his motion for a new trial. Because this moti on was actually an unauthorized second or successive motion under 28 U.S. C. § 2255, we vacate the di strict court’s order and remand with instructions to dism iss for lack of jurisdiction. I After receiving an anonymous tip that Beadles had robbed a bank in Topeka, Kansas, FBI agents conducted an interview of Beadles in which he confessed after

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 21, 2016 Elisabeth A. Shumaker Clerk of Court2 signing a waiver of his Mira nda rights. Beadles repe ated his confession when testifying at trial. He clai med that he was coerced into participating in the robbery through threats of violence to himself and hi s wife. A jury convicted Beadles of bank robbery and he was sentenced to 210 months’ imprisonment. Prior to sentencing, Beadles filed a motion for a new trial based on newly discovered evidence pursuant to Fed. R. Crim. P. 33, which the dist rict court denied. We affirmed Beadles’ sentence on direct a ppeal. United States v. Beadles, 508 F. App’x 807, 814 (10th Cir. 2013). He then f iled a § 2255 motion in the district court, which was also denied. The instant appeal con cerns a second Rule 33 motion filed by Beadles following the district court’s denial of habeas relief. Beadles claims the government violated his due process rights because it could not produce p hone records of the anonymous tip. He requested that the court vacate his convi ction. The district court denied the motion, concluding Beadles o ffered only speculative and conclusory claims of new evidence, which he claimed to have learned about from counsel prior to his initial Rule 33 motion. After Bead les appealed, the government filed a motion for remand, asserting that Beadles’ Ru le 33 motion was actually a second or successive § 2255 motion over which the distri ct court lacked jurisdiction as Beadles failed to receive author ization under § 2255(h). II A district court has jurisdiction to addr ess the merits of a second or successive § 2255 motion only if the defenda nt first obtains authoriza tion from a circuit court.3 In re Lindsey, 582 F.3d 1173, 1174 (10t h Cir. 2009) (per curiam). A motion “claiming the right to be released upon th e ground that the sentence was imposed in violation of the Constitution or laws of the United States” should be treated as a § 2255 motion. United States v. Nelson, 465 F.3d 1145, 11 48 (10th Cir. 2006) (quotation omitted). “It is the relief sought, not [the] plead ing’s title, that determines whether the pleading is a § 2255 motion.” Id. at 1149. In his second motion for a new trial, B eadles seeks release from prison on the ground that his conviction was obtained in violation of the Constitution. He does not allege any newly discovered evidence that would justify a new trial, and admitted that the information forming the basis of his motion was disclosed to him prior to sentencing. We thus conc lude his motion was actually an unauthorized second or successive § 2255 motion. S ee United States v. Evans, 224 F.3d 670, 674 (7th Cir. 2000) (“A defendant whose argument is not that newly discovered evidence supports a claim of innocence, but instead that he has new evidence of a constitutional violation or other ground of collateral attack, is making a motion under § 2255 . . . no matter what caption he put s on the document.”). To the extent Beadles a ttempts to pursue a fraud upon the court theory, our conclusion remains the sa me. “[A] motion alleging fraud on the court in the defendant’s criminal proceedin g must be considered a sec ond-or-successive collateral attack because it a sserts or reasserts a challenge to the defendant’s underlying conviction.” United States v. Baker, 718 F.3d 1204, 1207 (10th Cir. 2013). Because Beadles’ attempt to collatera lly attack his conviction re nders his Rule 33 motion an4 unauthorized second or successive § 2255 motion, the district court lacked jurisdiction to consider it. In re Lindsey, 582 F. 3d at 1174. III We GRANT the government’s motion to remand. 1 The district court’s order is VACATED . We REMAND with instructions to dism iss the motion for lack of jurisdiction.

Entered for the Court

Carlos F. Lucero Circuit Judge

1 In his response to the government’s mo tion, Beadles requests a stay of these proceedings. We deny that request.