UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CARRIE MARIE NEIGHBORS, 

 Defendant - Appellant. 

No. 15-3020 

(D.C. Nos. 2:13-CV-02239-CM and 

2:07-CR-20124-CM-1) 

(D. Kansas) 

_________________________________ 

ORDER DENYING 

CERTIFICATE OF APPEALABILITY

_________________________________ 

Before KELLY, LUCERO, and McHUGH, Circuit Judges. 

_________________________________ 

Carrie Marie Neighbors, a federal prisoner proceeding pro se,1

 seeks to appeal the 

district court’s dismissal in part and denial in part of her motion to reconsider the denial 

of relief under 28 U.S.C. § 2255. For the reasons explained below, we deny a certificate 

of appealability (COA), conclude Ms. Neighbors is not authorized to file a second or 

successive petition in the district court, and dismiss the matter. 

 

 This order is not binding precedent, except under the doctrines of law of the 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. 

1

 Because Ms. Neighbors appears pro se, we liberally construe her filings. Yang v. 

Archuleta, 525 F.3d 925, 927 (10th Cir. 2008); Hall v. Scott, 292 F.3d 1264, 1266 (10th 

Cir. 2002). 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 20, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

I. BACKGROUND 

A jury convicted Ms. Neighbors in 2010 of wire fraud, money laundering, and 

related conspiracy charges. The United States District Court for the District of Kansas 

sentenced her to 97 months in prison. Ms. Neighbors appealed, and we affirmed her 

conviction and sentence. United States v. Neighbors, 457 F. App’x 785 (10th Cir. 2012). 

Ms. Neighbors, through habeas counsel, filed in the district court a § 2255 petition 

attacking the validity of her conviction and sentence. She claimed her trial counsel was 

ineffective for, among other things, failing to object to the Presentence Report’s loss 

calculation because it included the gross, not net, profits of the illegal enterprise in 

contravention of United States v. Santos, 553 U.S. 507, 509 (2008) (holding that when 

the government alleges that the defendant laundered the “proceeds” of an illegal 

gambling business, the government must prove that the laundering transactions involved 

the profits of the business, rather than its gross receipts). She also claimed that her 

sentence was procedurally unreasonable because it was calculated in violation of Alleyne 

v. United States, ___ U.S.___, 133 S. Ct. 2151 (2013) (holding that any fact that increases 

a mandatory minimum sentence for a crime is an “element” of the crime, not a 

“sentencing factor,” that must be submitted to jury), that the district court erred in failing 

to appoint new counsel, and that her right to a speedy trial was violated. 

 The district court denied relief. It concluded Ms. Neighbors could not establish 

counsel was deficient under Strickland v. Washington, 466 U.S. 668 (1984), and that 

although Alleyne was decided while her habeas case was pending, it was not made 

retroactively applicable to cases on collateral review. The district court further concluded 
3 

she was procedurally-barred from bringing the other claims, including the speedy trial 

claim, because they were not raised in her direct appeal. In denying Ms. Neighbors 

habeas relief, the court also noted she had referenced other claims for relief in her initial 

habeas petition, but these claims were conclusory, unsupported, and abandoned because 

they were not argued in her opening brief.2

Ms. Neighbors subsequently filed a motion asking the district court to reconsider 

its denial of her § 2255 petition, asserting that her appellate counsel was ineffective for 

failing to raise her speedy trial claims. In addition, she reframed her argument related to 

the loss calculation. Rather than argue that her trial counsel was ineffective for failing to 

object to the use of gross profit figures for the purposes of calculating loss at sentencing, 

Ms. Neighbors claimed her conviction should be vacated because the government failed 

to allege and prove net profits as an essential element of money laundering as required by 

Santos. Ms. Neighbors also asserted that the government had committed fraud and 

tampered with evidence at trial and during the direct appeal. Finally, she claimed that 

habeas counsel committed fraud by filing a memorandum of law that was different from 

the memorandum she approved. According to Ms. Neighbors, the memorandum she 

approved included the claims the district court later deemed abandoned. 

The district court considered Ms. Neighbors’s filing as a “mixed motion,” i.e. one 

that contained claims under Federal Rule of Civil Procedure 60, as well as second or 

 2

 These claims alleged trial counsel was ineffective for failing to object to the 

admission of allegedly false evidence, for failing to challenge the chain of custody of 

evidence introduced by the prosecution, and for failing to incorporate an investigator’s 

interviews into Ms. Neighbors’s defense. 
4 

successive habeas claims. See Spitznas v. Boone, 464 F.3d 1213, 1217 (10th Cir. 2006) 

(explaining the difference between true Rule 60(b) claims and second or successive 

claims). It rejected Ms. Neighbors’s allegations of fraud in the habeas proceeding on the 

merits and dismissed the remaining claims, concluding it lacked jurisdiction to consider 

them because they were second or successive claims and Ms. Neighbors had not obtained 

permission from this court to file them. 

Ms. Neighbors filed a notice of appeal of the district court’s order dismissing in 

part and denying in part her motion to reconsider, and also filed with this court a 

combined opening brief and application for a COA. Specifically, she again argues that 

the government failed to allege and prove net profits as a required element of money 

laundering and that there was insufficient evidence to support the loss calculation used at 

sentencing. She also asserts that the district court should have considered whether there 

was a violation of her right to a speedy trial, and realleges her claims that the government 

committed fraud on the trial court and that her habeas counsel committed fraud on the 

habeas court.3

 3

 On a related note, Ms. Neighbors filed a motion to compel the government to 

supplement the record on appeal by submitting the Grand Jury transcript for the Second 

Superseding Indictment in this case. According to Ms. Neighbors, the Grand Jury 

transcript reveals that the government purposefully presented the Second Superseding 

Indictment when it did to avoid having to prove net, rather than gross, profits because the 

indictment was presented two weeks after the Court decided United States v. Santos, 553 

U.S. 507, 509 (2008). Ms. Neighbors implies that this tactical decision was fraudulent. 

 This argument makes little sense, especially since Ms. Neighbors claims the 

government filed the Second Superseding Indictment after Santos was issued. In any 

event, the Grand Jury transcript is unnecessary to resolve the issues on appeal, and we 

therefore deny Ms. Neighbors’s motion to compel. 
5 

II. ANALYSIS 

We first examine Ms. Neighbors’s application for a COA and determine she is not 

entitled to a COA to appeal the district court’s denial in part and dismissal in part of her 

motion to reconsider. Second, we construe Ms. Neighbors’s combined opening brief and 

application for a COA as a request to file a second or successive petition and deny her 

permission with respect to her speedy trial claim, the government’s failure to allege or 

establish net profits as an essential element of her money laundering conviction, her 

challenge to the loss calculation, and her allegations of fraud at trial and on direct appeal. 

A. Application for a COA 

Ms. Neighbors must obtain a COA to pursue an appeal of the district court’s ruling 

on her motion to reconsider. See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 

2008) (holding a federal prisoner must obtain a COA to appeal a district court’s dismissal 

of an unauthorized second or successive motion under § 2255 for lack of jurisdiction); 

Spitznas, 464 F.3d at 1218 (holding a COA is required to appeal the denial of a Rule 

60(b) motion in a habeas case). To obtain a COA, Ms. Neighbors must show both “that 

jurists of reason would find it debatable whether the petition states a valid claim of the 

denial of a constitutional right and that jurists of reason would find it debatable whether 

the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 

484 (2000). Ms. Neighbors has not carried this burden. 

 With respect to Ms. Neighbors’s claim that habeas counsel committed fraud in the 

habeas proceeding, the district court correctly treated this claim as a true Rule 60 claim. 

See Spitznas, 464 F.3d at 1216 (holding that a motion asserting fraud or other defect in 
6 

the integrity of the federal habeas proceeding may constitute a true 60(b) motion). Once 

the district court construed Ms. Neighbors’s claim as a true Rule 60 claim, it had the 

authority to consider and reject it on the merits. See id. at 1217. We review the district 

court’s denial of a Rule 60 claim for an abuse of discretion. See Davis v. Kan. Dep’t of 

Corr., 507 F.3d 1246, 1248 (10th Cir. 2007); United States v. Buck, 281 F.3d 1336, 

1342–43 (10th Cir. 2002). 

Here, Ms. Neighbors has not established that reasonable jurists would debate 

whether the district court’s decision to deny her Rule 60 claim of fraud by habeas counsel 

was an abuse of discretion. As the district court acknowledged, Rule 60(b) permits a 

court to relieve a party from a final judgment for “fraud . . . misrepresentation, or 

misconduct by an opposing party,” or for “any other reason that justifies relief.” Fed. R. 

Civ. P. 60(b)(3), (b)(6). Likewise, Rule 60(d)(3) recognizes a court’s power to “set aside 

a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3); Hazel-Atlas Glass Co. v. 

Hartford-Empire Co., 322 U.S. 238, 246 (1944). The district court correctly rejected Ms. 

Neighbors’s claims under Rule 60(b) and (d) in this case. As the court correctly noted, 

the plain language of Rule 60(b)(3) requires that the fraud be committed by an opposing 

party, and there was nothing to indicate that habeas counsel’s conduct constituted an 

“extraordinary circumstance” that would otherwise justify relief under Rule 60(b)(6). See 

Fed. R. Civ. P. 60(b)(3) (permitting a court to relieve a party from a final judgment where 

there is “fraud . . . by an opposing party”); Davis, 507 F.3d at 1248 (recognizing that 

relief “is extraordinary and may only be granted in exceptional circumstances.”); cf.

Klapprott v. United States, 335 U.S. 601, 613 (1949) (concluding that relief was justified 
7 

under Rule 60(b)(6) where the petitioner was deprived of any reasonable opportunity to 

defend against the charges). 

The district court was also correct that Ms. Neighbors’s allegation that habeas 

counsel omitted certain claims from the memorandum of law does not constitute the type 

of fraud governed by Rule 60(d)(3). Even assuming habeas counsel’s filing of the 

memorandum was fraudulent, it was a fraud perpetrated on Ms. Neighbors, not the 

district court. See Buck, 281 F.3d at 1342 (“Fraud on the court . . . is fraud which is 

directed to the judicial machinery itself . . . .”); Weese v. Shukman, 98 F.3d 542, 552–53 

(10th Cir. 1996) (“[O]nly the most egregious misconduct, such as bribery of a judge or 

members of a jury, or the fabrication of evidence by a party in which an attorney is 

implicated,” rises to the level of fraud on the court). Therefore, reasonable jurists would 

not debate the correctness of the district court’s resolution of Ms. Neighbors’s claims of 

fraud in the habeas proceeding and she is not entitled to a COA to appeal the district 

court’s decision on this issue. 

Likewise, Ms. Neighbors has not established that jurists of reason would debate 

that the district court properly dismissed Ms. Neighbors’s claims for ineffective 

assistance of counsel, speedy trial violations, the government’s failure to allege or 

establish net profits, the sufficiency of the evidence supporting the loss amount, or fraud 

on the trial and appellate court. The district court correctly concluded that these claims 

are second or successive habeas claims because they all attacked the integrity of Ms. 

Neighbors’s underlying conviction and sentence rather than a procedural error in the 

habeas proceeding. See United States v. Nelson, 465 F.3d 1145, 1147–49 (10th Cir. 2006) 
8 

(holding a Rule 60(b) motion is a second or successive § 2255 motion if it challenges the 

defendant’s conviction or sentence rather than a procedural error in the previous § 2255 

proceeding). As the district court recognized, Ms. Neighbors’s motion to reconsider was 

devoted primarily to rearguing the underlying merits of these claims, and to the extent 

Ms. Neighbors also alleged government misconduct or fraud during the trial or on direct 

appeal, these claims also attack the integrity of the underlying criminal proceeding. See 

United States v. Baker, 718 F.3d 1204, 1207 (10th Cir. 2013) (“a motion alleging fraud 

on the court in a defendant’s criminal proceeding must be considered a second-orsuccessive collateral attack because it asserts or reasserts a challenge to the defendant’s 

underlying conviction”). Because the district court correctly construed these claims as 

second or successive habeas claims, it was required to dismiss them because it lacked the 

jurisdiction to consider them in the absence of certification from this court. See 28 U.S.C. 

§ 2255(h) (requiring a second or successive motion to be certified by the appropriate 

appellate court before it can be filed in the district court); Nelson, 465 F.3d at 1148 (“if 

the prisoner’s pleading must be treated as a second or successive § 2255 motion, the 

district court does not even have jurisdiction to deny the relief sought in the pleading”). 

For these reasons, Ms. Neighbors is not entitled to a COA to pursue her appeal 

challenging the district court’s denial in part and dismissal in part of her motion to 

reconsider. 

B. Application for Request to File a Second or Successive Petition 

Having decided Ms. Neighbors is not entitled to a COA to appeal the district 

court’s resolution of her motion to reconsider for lack of jurisdiction, we exercise our 
9 

discretion to treat her appeal as a petition for permission to file a second or successive 

petition. Spitznas, 464 F.3d at 1219 n.8. In particular, we consider whether Ms. 

Neighbors should be permitted to pursue the following second or successive claims: (1) 

the government violated her right to a speedy trial and her appellate counsel was 

ineffective for failing to raise the issue; (2) the government committed fraud on the trial 

and appellate court; (3) the government failed to establish net profits as an essential 

element of her money laundering conviction, and (4) there was insufficient evidence to 

support the loss calculation used at sentencing. 

To receive authorization to file a successive application, Ms. Neighbors must 

show either 

(1) newly discovered evidence that, if proven and viewed in light of the evidence 

as a whole, would be sufficient to establish by clear and convincing evidence that 

no reasonable factfinder would have found the movant guilty of the offense; or 

(2) a new rule of constitutional law, made retroactive to cases on collateral review 

by the Supreme Court, that was previously unavailable. 

28 U.S.C. § 2255(h). Ms. Neighbors has failed to satisfy these requirements. 

 With respect to her speedy trial and fraud on the trial and appellate court claims, 

Ms. Neighbors points to no newly discovered evidence that would establish by clear and 

convincing evidence that no reasonable jury would have found her guilty of the crimes 

charged, nor has she shown that either claim involves a new rule of constitutional law 

made retroactively applicable to her case. Likewise, her loss calculation claim is targeted 

at the length of her sentence, not the validity of her conviction, and she has identified no 
10 

new rule of constitutional law that would retroactively apply here.4

 Finally, Ms. 

Neighbors’s claim that the government failed to establish net profits as an essential 

element of her money laundering conviction does not present grounds to file a second or 

successive petition. As with her other claims, Ms. Neighbors directs our attention to no 

newly discovered evidence that would establish by clear and convincing evidence that no 

reasonable factfinder would have found her guilty of money laundering. And the case to 

which she directs our attention, Santos, is not a new rule of constitutional law made 

retroactive to cases on collateral review by the Supreme Court. Santos was issued in 

2008, prior to Ms. Neighbors’s conviction. 

In sum, even considering Ms. Neighbors’s combined opening brief and application 

for COA as a request for authorization to file a second or successive petition, we deny 

Ms. Neighbors permission to pursue these claims. 

III. CONCLUSION 

For the foregoing reasons, we deny Ms. Neighbors’s application for a COA. We 

also construe Ms. Neighbors’s combined opening brief and application for a COA as a 

request to file a second or successive petition, which we deny. We also deny her motion 

to compel the government to supplement the record on appeal. But we grant her motion 

 4

 Recall that in her initial § 2255 petition, Ms. Neighbors challenged her loss 

calculation on the grounds that it violated Alleyne v. United States, ___ U.S.___, 133 S. 

Ct. 2151 (2013), which the Supreme Court decided while Ms. Neighbors’s first habeas 

petition was pending. She did not raise this argument in her motion to reconsider, nor 

does she cite it in her combined opening brief and application for COA. Even if she had, 

it would nevertheless be unavailing because, as the district court recognized, Alleyne does 

not apply retroactively. See In re Payne, 733 F.3d 1027, 1029–30 (10th Cir. 2013). 
11 

for leave to proceed on appeal without prepayment of costs and fees. This matter is 

dismissed. 

 ENTERED FOR THE COURT 

 Carolyn B. McHugh 

 Circuit Judge