FILED

United States Court of Appeals

Tenth Circuit

September 16, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

JAMES EARL LINDSEY,

Movant.

No. 09-3184

(D.C. Nos. 5:06-CV-4143-RDR &

5:03-CR-40011-RDR-1)

(D. Kan.)

ORDER

Before TACHA, EBEL, and HARTZ, Circuit Judges.

PER CURIAM.

James Earl Lindsey, a federal prisoner appearing pro se, filed a

Fed. R. Civ. P. 60(b) motion claiming that the district court erred in deciding his

28 U.S.C. § 2255 motion without granting him an evidentiary hearing. The

district court concluded that the claims required authorization under § 2255(h) as

a second or successive motion and transferred the motion to this court. 

Mr. Lindsey has moved to remand, arguing that he challenges only the integrity of

the federal proceedings, and thus his assertions do not require authorization under

§ 2255(h). We disagree, and therefore we deny the motion to remand.
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Background

In 2004, a jury convicted Mr. Lindsey of drug and firearms offenses, and

this court affirmed. United States v. Lindsey, 160 F. App’x 708, 711 (10th Cir.

2005). A year later, raising numerous claims for relief, Mr. Lindsey filed a

motion under § 2255 to vacate, set aside, or correct his sentence. Concluding that

Mr. Lindsey was not entitled to relief, the district court dismissed the § 2255

motion without requiring the United States to answer and without conducting an

evidentiary hearing, a procedure permitted by § 2255(b) and Rule 4(b) of the

Rules Governing § 2255 Proceedings. This court determined that Mr. Lindsey’s

appeal was untimely and dismissed the appeal without reaching the merits of his

§ 2255 claims. United States v. Lindsey, 264 F. App’x 710, 711-12 (10th Cir.

2008), cert. denied, 129 S. Ct. 900 (2009).

More than two years after the district court dismissed his § 2255 motion,

Mr. Lindsey filed a Rule 60(b)(6) motion for relief from judgment. In his

Rule 60(b) motion, he alleged that his § 2255 claims were deserving of an

evidentiary hearing, and it was an error to dismiss the motion without holding

such a hearing. He recognized that a merits-based challenge requires this court’s

authorization as a second or successive § 2255 motion, see Gonzalez v. Crosby,

545 U.S. 524, 531-32 (2005); Spitznas v. Boone, 464 F.3d 1213, 1216-17

(10th Cir. 2006), but he characterized his arguments as procedural in nature,

asserting they “deal[] primarily with some irregularity or procedural defect in the
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procurement of the judgment.” Motion for Relief from Judgment, Dist. Ct.

Doc. 219 at 2. 

Noting that in the § 2255 proceeding it had “specifically found that

defendant’s § 2255 motion should be denied without an evidentiary hearing

because the record ‘conclusively shows that defendant is not entitled to relief on

his claims,’” the district court held that Mr. Lindsey’s Rule 60(b) claims were in

reality an attack on the court’s merits determination. Order of June 29, 2009,

Dist. Ct. Doc. 220 at 3 (quoting Memorandum and Order of January 29, 2007,

Dist. Ct. Doc. 190 at 23). Thus, the district court held the claims required

authorization under § 2255(h) and transferred the motion to this court. See In re

Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Mr. Lindsey then moved to remand

the matter to the district court.

Analysis

Congress has placed limits on second or successive 28 U.S.C. § 2254

applications and § 2255 motions, allowing them to proceed only in specified

circumstances and only with a circuit court’s prior authorization. See 28 U.S.C.

§§ 2244(b), 2255(h). In Gonzalez, a case involving a § 2254 application, the

Supreme Court recognized that a Rule 60(b) motion may be subject to the

requirements for second or successive applications if it asserts, or reasserts, a

“claim,” that is, “an asserted federal basis for relief from a state court’s judgment

of conviction.” 545 U.S. at 530. Thus, “a Rule 60(b)(6) motion in a § 2254 case
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is not to be treated as a successive habeas petition if it does not assert, or reassert,

claims of error in the movant’s state conviction.” Id. at 538. 

A motion can . . . be said to bring a “claim” if it attacks the federal

court’s previous resolution of a claim on the merits, since alleging

that the court erred in denying habeas relief on the merits is

effectively indistinguishable from alleging that the movant is, under

the substantive provisions of the statutes, entitled to habeas relief. 

That is not the case, however, when a Rule 60(b) motion attacks, not

the substance of the federal court’s resolution of a claim on the

merits, but some defect in the integrity of the federal habeas

proceedings. 

Id. at 532 (footnote omitted). The term “on the merits” 

refer[s] to a determination that there exist or do not exist grounds

entitling a petitioner to habeas corpus relief under 28 U.S.C.

§§ 2254(a) and (d). When a movant asserts one of those grounds (or

asserts that a previous ruling regarding one of those grounds was in

error) he is making a habeas corpus claim.

Id. at 532 n.4.

We apply the Gonzalez mode of analysis to § 2255 proceedings as well

as § 2254 cases. United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). 

In analyzing whether Rule 60(b) arguments require authorization under § 2255(h),

the first step is to determine whether the motion asserts non-merits Rule 60(b)

arguments (which this court has referred to as a “true” 60(b) motion) or asserts

merits-focused, second or successive claims. See Spitznas, 464 F.3d at 1216.

Under Gonzalez, a 60(b) motion is a second or successive

petition if it in substance or effect asserts or reasserts a federal basis

for relief from the petitioner’s underlying conviction. Conversely, it

is a “true” 60(b) motion if it either (1) challenges only a procedural

ruling of the habeas court which precluded a merits determination of
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the habeas application; or (2) challenges a defect in the integrity of

the federal habeas proceeding, provided that such a challenge does

not itself lead inextricably to a merits-based attack on the disposition

of a prior habeas petition. 

Id. at 1215-16 (citations omitted). Mr. Lindsey’s motion falls into neither of

Spitznas’s two categories of Rule 60(b) arguments that do not require this court’s

authorization under § 2255(h).

The first type of Rule 60(b) assertion that does not require authorization is

one challenging a “procedural ruling . . . which precluded a merits

determination.” Id. at 1216 (emphasis added). While the decision whether or not

to hold an evidentiary hearing may be classified as a procedural ruling, the

district court’s decision not to hold an evidentiary hearing did not preclude a

merits determination on Mr. Lindsey’s § 2255 motion; it was the result of a

merits determination. Section 2255(b) contemplates an early dismissal of the

motion only if “the motion and the files and records of the case conclusively show

that the prisoner is entitled to no relief.” Similarly, Rule 4(b) of Rules Governing

§ 2255 Proceedings provides, “[i]f it plainly appears from the motion, any

attached exhibits, and the record of prior proceedings that the moving party is not

entitled to relief, the judge must dismiss the motion . . . .” Thus, the district court

necessarily made a merits determination in deciding Mr. Lindsey’s § 2255 motion

without a hearing. 
1 This is not to say that a Rule 60(b) motion claiming an erroneous denial of

an evidentiary hearing in a § 2255 or § 2254 proceeding must always receive

circuit authorization to proceed. There may be some circumstances in which a

request for an evidentiary hearing is not a disguised attack on the merits.

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The second type of Rule 60(b) argument that does not require authorization

is a challenge to “a defect in the integrity of the federal habeas proceeding,

provided that such a challenge does not itself lead inextricably to a merits-based

attack on the disposition of a prior habeas petition.” Spitznas, 464 F.3d at 1216

(emphasis added). But Mr. Lindsey’s Rule 60(b) motion does lead inextricably to

a merits-based attack on the dismissal of the § 2255 motion. The decision not to

hold an evidentiary hearing essentially is the equivalent of a dismissal for failure

to state a claim or a summary judgment, because the district court has concluded

that the record does not entitle the prisoner to relief; either the prisoner has failed

even to allege facts on which relief could be predicated, or the record

conclusively contradicts the prisoner’s allegations. Thus, there could be no error

in denying an evidentiary hearing unless the district court made an incorrect

merits determination. It follows that, to argue that the court erred in denying an

evidentiary hearing on a § 2255 motion, the prisoner generally has to be attacking

the district court’s analysis of the merits.1

The arguments in Mr. Lindsey’s Rule 60(b) motion were “effectively

indistinguishable from alleging that [he] is, under the substantive provisions of

the statutes, entitled to habeas relief.” Gonzalez, 545 U.S. at 532. The district
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court did not err in concluding that the claims required authorization under

§ 2255(h) and in transferring the motion to this court. The motion to remand

is DENIED, and this matter is TERMINATED.