UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LAUREN ELIZABETH SCOTT, Defendant - Appellant. No. 15-8121 (D.C. Nos. 1:15-CV-00173-SWS & 1:12-CR-00058-SWS-2) (D. Wyo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before TYMKOVICH , Chief Judge, MATHESON and McHUGH , Circuit Judges.

Defendant Lauren Elizabeth Scott, a federal prisoner proceeding pro se, seeks to appeal the district court’s dismissal of what it construed to be an unauthorized second or successive motion under 28 U.S.C. § 2255. See In re Cline , 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). Ms. Scott contends that the district court erred in construing her “Petiti on to Vacate Judgement for Fr aud on the Court (Fed. R. Civ. P. 60(d)(3))” as a § 225 5 motion and that it further erred in concluding that it was second or successive. We deny a certifi cate of appealabilit y (COA) and dismiss the matter.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### April 1, 2016 Elisabeth A. Shumaker Clerk of Court- 2 - I. Ms. Scott pled guilty to fraud and m oney-laundering charges arising from a scheme in which she and ot hers took money from investor s for “wind farm” projects in Wyoming that did not actually exist. Following an aborted appeal (she voluntarily dismissed her appeal before any briefs were filed), she filed a § 2255 motion. The district court denied relief a nd this court denied a COA, United States v. Scott , No. 15-8030, Order Denying COA (Oct. 20, 2015). Shortly before we issued our order denying COA, Ms. Sco tt filed what she contended was an independent action under Fed. R. Civ. P. 60(b)(3) for fra ud on the court. She contended that the government perpetrated a fraud on the cour t by (1) keeping the grand jury empaneled more than 18 months without a court order, see Fed. R. Crim. P. 6(g); and (2) fabricating evidence and producing perjured testimony at two pretrial hearings. She argued that her conviction and sent ence should therefore be set aside. The district court concluded that Ms . Scott’s petition was in substance a § 2255 motion because it attack ed her conviction and senten ce. It further concluded that this was her second § 2255 motion and that she had not obtained circuit authorization before filing it. The court th erefore dismissed the matter for lack of jurisdiction. II. To appeal the district court’s dismi ssal, Ms. Scott must first obtain a COA under 28 U.S.C. § 2253(c)(1)(B). See United States v. Baker , 718 F.3d 1204, 1206- 3 - (10th Cir. 2013) (requi ring COA to appeal dismissal of filing that district court construed as unauthorized s econd or successive § 2255 motion) . Because the district court’s dismissal rests on pro cedural grounds, Ms. Scott mu st show both “that jurists of reason would find it deba table whether the petition stat es a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was co rrect in its procedural ruling,” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We conclude that reasonable jurists could not debate the propriety of construing Ms. Scott’s purported Rule 60(b) petition as a § 2255 motion. See Baker , 718 F.3d at 1206-07 (holding that where fr aud-on-the-court allegations related to underlying criminal proceedi ngs and not to integrity of § 2255 proceedings, district court properly construed Rule 60 motion as § 2255 motion). We further conclude that reasonable jurists could not debate th e propriety of constr uing the § 2255 motion as a second or successive motion. Ms. Scott contends the motion is not s econd or successive because the district court entered an amended judgment on Nove mber 16, 2015, after she filed her first § 2255 motion. See Magwood v. Patterson , 561 U.S. 320, 323-24 (2010). But the record shows that the district court has never amended the j udgment as to Ms. Scott. The order it entered on November 16, 2015, merely identified the successor in interest of one of the payees to whom Ms. Scott’s co-def endant, Robert Arthur Reed, owes restitution. That order had no effect on Ms. Scott’s judgment. So the district- 4 - court properly construed her Rule 60(d)(3 ) motion as a second or successive § 2255 motion. Because Ms. Scott did not obtain our authorization before filing the motion,

see 28 U.S.C. §§ 2244(b)(3), 2255(h), the dist rict court properly dismissed it for lack of jurisdiction, see In re Cline , 531 F.3d at 1252. We therefore deny a COA and dismiss th is matter. We grant Ms. Scott’s motion to proceed on appeal without th e prepayment of fees or costs.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk