UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOHN SCOTT PI NKERTON, Defendant - Appellant. No. 18-8047 (D.C. No. 1:13-CR-00170-ABJ-1) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before BRISCOE , HARTZ , and MORITZ , Circuit Judges.

________________ _________________ John Scott Pinkerton, a federa l prisoner proceeding pro se, see ks to appeal the district court’s decision const ruing his motion for relief unde r Fed. R. Civ. P. 60(d)(3) 1 as a second or successive 28 U.S.C. § 2255 motion and dismissing i t for lack of jurisdiction. To appeal from that dismissal, he must obtain a certificate of appealability (COA). See United States v. Harper , 545 F.3d 1230, 1233 (10th Ci r. 2008). For the reasons that follow, we deny a COA and dismiss this matter.

* This order is not binding prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, for its persuasive value consistent with Fed. R. App. P . 32.1 and 10th Cir. R. 32.1.

1 That portion of Rule 60 states: “This rule does not limit a c ourt’s power to: . . . set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3). FILED United States Court of Appeals Tenth Circuit 

### October 2, 2018 Elisabeth A. Shumaker Clerk of Court2 Mr. Pinkerton pleaded guilty to one count of attempted online e nticement of a minor in violation o f 18 U.S.C. § 2422(b). He was sentenced to 120 months in prison. He did not file a direct appeal , but he later filed a § 2255 mo tion. The district court dismissed the § 2255 motion as time-barred. Mr. Pinkerton did not seek a COA to appeal from that dismissal. Since the dismissal of his § 22 55 motion, Mr. Pinkerton has fil ed a number of unsuccessful post-judgment moti ons attempting to collaterally a ttack his conviction. Most recently, he filed the underl ying Rule 60(d)(3) motion in which he requested that the district court dismiss his indictment and judgment with pre judice based on fraud on the court. The district court determined that Mr. Pinkerton’s Rule 60(d)(3) motion was an unauthorized second or successi ve § 2255 motion and dismisse d it for lack of jurisdiction. The district court then denied a COA. Mr. Pinkerton now seeks a COA to appeal from the district court ’s decision. 2 To obtain a COA from the district court’s procedural ruling, Mr. P inkerton must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right a nd that jurists of reason wou ld find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). A pleading should be treated as a second or suc cessive § 2255 m otion “if it in substance or effect asserts or r easserts a federal basis for re lief from the petitioner’s

2 We construe the brief Mr. Pinke rton filed as a combined applic ation for a COA and an opening brief.3 underlying conviction.” Spitznas v. Boone , 464 F.3d 1213, 1215 (10th Cir. 2006). “It is the relief sought, not [the] pleading’s title, that determines whether the pleading is a § 2255 motion.” United States v. Nelson , 465 F.3d 1145 (10th Cir. 2006). A prisoner may not file a second or successi ve § 2255 motion unless he fir st obtains an order from the circuit court authorizing th e district court to consider th e motion. 28 U.S.C. § 2244(b)(3)(A); id . § 2255(h). Absent such authorization, a district court lacks jurisdiction to address the mer its of a second or successive § 2255 motion. In re Cline , 531 F.3d 1249, 12 51 (10th Cir. 2008 ) (per curiam). The district court observed tha t Mr. Pinkerton argued the follo wing in his Rule 60(d)(3) motion: “Title 18 of the United St ates Code was not p roperly enacted in 1948, therefore 18 U.S.C. § 3231 is not a law, thus the indictment an d judgment in this case are based on fraud on the court by the Prosecutor and Judge . . .” R., Vol. 5 at 55 (internal quotation marks and citations o mitted). The court concluded th is was “a straightforward challenge to the legality of [Mr. P inkerton’s] con viction and s entence[;] [i]t ‘in substance or effect asserts or reasserts a federal basis for relief from [his] underlying conviction.’” Id . at 56 (quoting Spitznas , 464 F.3d at 1215-16). The court therefore determined that th e Rule 60(d)(3) motion mu st be treated as a second or successive § 2255 motion. Because Mr. Pinkerton had not received th e proper authorization from th is court to file a second or successive § 2255 motion, the district court dismissed it for l ack of jurisdiction. Mr. Pinkerton first argues that t he district court should not h ave recharacterized his Rule 60(d)(3) motion as a § 2255 motion, citing to the Supr eme Court’s decision in Castro v. United States , 540 U.S. 375 (2003). In Castro , the Court agreed with a number4 of appellate courts, including ou rs, “that a district court may not recharacterize a pro se litigant’s motion as a request for relief under § 2255—unless t he court first warns the pro

se litigant about the consequences of the recharacterization, the reby giving the litigant the opportunity to contest the rech aracterization, or to withdraw o r amend the motion.” 540 U.S. at 382. The Court exp lained, however, that this limit ation on the district courts’ recharacterization powers applie d only “when a court recharacte rizes a pro se litigant’s motion as a first § 2255 motion.” Id . at 383 (emphasis added ). We have likewise held that this restriction on recharact erization does not apply wher e the prisoner previously filed a § 2255 motion. See Nelson , 465 F.3d at 1149. Beca use Mr. Pinkerton had previously filed a § 2255 motion before he filed the underlying Rule 60(d)(3) motion, the Castro decision did not limit the distr ict court’s ability to rechara cterize the Rule 60(d)(3) motion as a § 2255 motion. Mr. Pinkerton next argues that h e “had an absolu te right to fil e a [Rule] 60(d)(3) Motion and not have it reconstrue d as anything else.” COA Br. at 4. In United States v. Baker , 718 F.3d 1204, 1206 (10th Cir. 2 013), we rejected the asserti on “that a motion invoking the district court’s i nherent power to set aside a jud gment obtained through fraud on the court is not subject t o the certification requirem ents in § 2255(h) if it is brought under Fed. R. Civ. P . 60(d)(3) . . . .” We acknowledge d that a pleading “alleging fraud on the court in a federal habeas proceeding ” could be properly brought in a motion under Fed. R. Civ. P. 60(b). Baker , 718 F.3d at 1207 (emphasi s added). “But a motion alleging fraud on the court in a d efendant’s criminal proceedin g must be considered a second-or-successive collateral attack because it asserts or re asserts a challenge to the5 defendant’s underlying conviction.” Id . Because Mr. Pinkerton’s Rule 60(d)(3) motion alleged fraud on the court in his criminal proceeding, reasonab le jurists could not debate the district court’s decision to construe it as a second or suc cessive § 2255 motion and dismiss it for lack of jurisdiction. Accordingly, we deny a COA and dismiss this matter. We grant M r. Pinkerton’s motion to proceed on appeal wit hout prepayment of costs or fees

. Entered for the Court

ELISABETH A. SHUMAKER, Clerk