UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. FRANK GUTIERREZ, Defendant - Appellant. No. 18-2148 (D.C. No. 2:16-CV-01218-RB-KBM & 2:09-CR-00760-RB-1) (D. N.M.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY 

________________ _________________ Before BACHARACH , PHILLIPS , and McHUGH , Circuit Judges.

________________ _________________ Frank Gutierrez, a federal pris oner proceeding pro se, seeks a certificate of appealability (COA) to appeal from(1) the district court’s dec ision dismissing his second 28 U.S.C. § 2255 motion as an un authorized second or successive § 2255 motion, and (2) the district court’s decisi on denying a portion of his Fed. R. Civ. P. 60(b) motion on the merits and then d ismissing the remainder as an unauthorized second or successive § 2255 motion. We deny a COA and dismiss this appeal.

 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. FILED United States Court of Appeals Tenth Circuit 

### February 6, 2019
Elisabeth A. Shumaker Clerk of Court2 I. Background Mr. Gutierrez was convicted by a jury of possession with intentto distribute 50 grams or more of methamphetami ne. We affirmed his conviction o n direct appeal. He filed his first § 2255 motion in 2014. The district court deni ed the § 2255 motion, and Mr. Gutierrez did not appeal. S everal months later, Mr. Gutier rez filed a “‘Motion to Enforce Order and for Immediate Di sclosure of Favorable Informa tion,’ in which he alleged the prosecution had supp ressed evidence involving polic e misconduct in violation of Brady v. Maryland , [373 U.S. 83 (1963)].” United States v. Gutierrez , 645 F. App’x 607, 607 (10th Cir. 2016). Becau se Mr. Gutierrez’s criminal pr osecution and § 2255 proceeding were both closed, the d istrict court dismissed the m otion for lack of jurisdiction. In considering th e appeal, we noted: “Whether o r not it is his intention, Mr. Gutierrez is attempting to cir cumvent established procedure s for asserting Brady claims after a conviction has be come final. As the district co urt indicated, the proper course would be to seek authori zation from this court to file a second or successive § 2255 motion, which Mr. Gutierrez may of course still do.” Id . at 608. We then affirmed the district court’s dismissal. In June 2016, Mr. Gutierrez filed a motion for authorization in this court, but he did not raise his Brady claim in that motion. 1 Instead, he sought autho rization to bring a

1 In his Statement of the Case, M r. Gutierrez represents that, o n May 30, 2016, he “filed for permission to file a s econd or successive § 2255 mot ion, based on the Brady violations and Quintero-Leyva v . United States. Not surprising ly the request to file a second or successive motion was denied.” COA App. at 4. We ha ve no record of any filing on May 30, 2016. The onl y motion for authorization file d close to that time period is the motion for authorization filed on June 30, 2016, which M r. Gutierrez captioned as3 claim to challenge his sentence enhancement pursuant to 21 U.S. C. § 851 based on Johnson v. United States , 135 S. Ct. 2551 (2015). 2 We denied his motion. In November 2016, Mr. Gutierrez f iled a second § 2255 motion ra ising two grounds for relief based on (1) t he Ninth Circuit’s ruling in United States v. Quintero-Leyva , 823 F.3d 519 (9th Cir. 2016), a nd Amendment 794 to the United States Sentencing Guidelines; and (2) Brady violations. The district court dismissed the motion for lack of jurisdiction after d etermining it was an unauthoriz ed second or successive § 2255 motion (“November 2016 order”). In February 2018, Mr. G utierrez filed a Rule 60(b) motion. The district court denied part of the Rule 60(b) motion on the merits and then dismissed the remainder of t he motion after concluding the remaining arguments constituted second or successive § 2255 claims (“September 2018 order”). Mr. Gutierrez now seeks a COA to appeal from th e November 2016 order and the September 2018 order. II. Discussion We first address the scope of our review. “This court has juri sdiction only to review district court judgments from which a timely notice of a ppeal has been filed.” Lebahn v. Owens , 813 F.3d 1300, 1304 (10th Cir. 20 16). When the government is a party

“Application for Authorization to File S[u]ccessive 28 U.S.C. § 2255 Motion in Light of Johnson v. United States.” In re Gutierrez , No. 16-2168, Mot. for Auth. (filed June 30, 2016).

2 This was the second motion for authorization Mr. Gutierrez fil ed in June 2016. A week earlier, he filed a moti on for authorization to file a s econd or successive § 2255 motion based on Johnson to challenge his 1993 conviction for conspiracy to possess marijuana. That motion was also denied.4 in a civil case, the appealing party has 60 days to file a noti ce of appeal after entry of the judgment or order appealed from. See Fed. R. App. P. 4(a )(1)(B)(i). Certain postjudgment motions will toll the 60-day period if they are filed within the time periods identified in Fed. R. App. P. 4 (a)(4)(A). As is relevant here, a Rule 60(b) motion can toll the 60-day period for filing an a ppeal if the “motion is filed no later than 28 days after the judgment is entered.” F ed. R. App. P. 4(a)(4)(A)(vi). Here, the district court entere d its order dismissing Mr. Gutie rrez’s second § 2255 motion on November 17, 2016. Mr. G utierrez did not seek to app eal that order. Almost fifteen months later, on February 9, 2018, he filed his Rule 60 (b) motion. Because Mr. Gutierrez filed his Rule 60(b ) motion more than 28 days aft er judgment was entered on his second § 2255 motion, his R ule 60(b) motion was too late to toll the time for appealing the November 2016 order. As a result, Mr. Gutierrez’ s October 2018 notice of appeal is timely only as to the district court’s September 2018 order denying his Rule 60(b) motion. To the extent th at Mr. Gutierrez’s COA applicati on attempts to challenge the district court’s November 2016 order, which dismissed his s econd § 2255 motion as an unauthorized second or successi ve § 2255 motion, we lack jur isdiction to consider his arguments. Instead, our review i s limited to Mr. Gutierrez’s r equest for a COA to appeal the district court’s September 2018 order. Mr. Gutierrez does not challenge t he portion of the district co urt’s September 2018 where it ruled on the merits o f his Rule 60(b) arguments. Inst ead, he focuses his arguments on the portion of the d istrict court’s decision const ruing the remainder of his Rule 60(b) motion as an unauthor ized § 2255 motion and dismissi ng it for lack of5 jurisdiction. He must obtain a COA to appeal from that procedu ral ruling. See United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2 008) (holding that a prisoner is required to obtain a COA to appe al from the district court’s di smissal of an unauthorized § 2255 motion). To obtain a COA , Mr. Gutierrez must show that “jurists of reason would find it debatable whether the pe tition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whethe r the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We need not address the constitutional ques tion if we conclude that rea sonable jurists would not debate the district court’s re solution of the procedural one. Id . at 485. A Rule 60(b) motion should be treated as a second or successive § 2255 motion “if it asserts or reasserts claims o f error in the prisoner’s convi ction.” United States v. Baker , 718 F.3d 1204, 1206 (10th Cir. 2013). “In contrast, if the mot ion seeks to correct an error in the previously con ducted § 2255 proceeding itself, it is not characterized as a successive motion.” Id . (internal quotation marks and brackets omitted). “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, 1149 (10th Cir. 2006). A prisoner may not file a second or successive § 2255 motion un less he first obtains an order from the circuit court authorizing the distric t court to consider the motion. 28 U.S.C. § 2244(b)(3)(A); id . § 2255(h). Absent such a uthorization, a district court lacks jurisdiction to addr ess the merits of a second or s uccessive § 2255 motion. In re Cline , 531 F.3d 1249, 12 51 (10th Cir. 2008 ) (per curiam).6 In his Rule 60(b) motion, Mr. Gut ierrez primarily focused on hi s claim that he had newly discovered evidence that he was arrested by corrupt polic e officers and that the prosecution failed to disclose th is exculpatory evidence during his criminal trial in violation of Brady . He argued that “[i]t cannot be disputed any longer that the offenses of conviction in this criminal c ase were fabricated and falsifi ed by tampering with evidence by ‘CORRUPT C OPS’[.]” R. at 65. He asked the district court to grant his motion, vacate his sentence, and grant him immediate release. The district court concluded th at much of Mr. Gutierrez’s Rule 60(b) motion “continue[d] to challenge his con viction and sentence,” and “th ese arguments constitute[d] successive [§ 2255] claims.” Id . at 116. Because Mr. Gutierrez had not received authorization to file a successive § 2255 motion, the district court explained that it lacked jurisdiction to consi der the merits of the successive § 2255 claims. In his COA application, Mr. Gutie rrez argues that the district court’s treatment of his Brady claim is reasonably debatable because “[t]he district court de nied the newly discovered Brady claim, as an u nauthorized ‘second or successiv e,’ without even considering the merits, or hol ding any hearings.” COA App. at 19. He also argues that “newly discovered [Brady] viola tions are never ‘second or succe ssive’[.]” Id

. Mr. Guiterrez fails to cite to any legal authority for his seco nd argument and we are aware of no such exception for Brady claims. His Brady claim is a second or successive § 2255 claim because it assert s a basis for relief from his con viction—it does not raise a claim of procedural error in hi s § 2255 proceed ings. As for hi s first argument, the district court correctly determined it c ould not consider the merits of the Brady claim. As we7 have explained, “[a] district c ourt does not have jurisdiction to address the merits of a second or successive § 2255 . . . c laim until this court has gr anted the required authorization.” Cline , 531 F.3d at 1251. Mr. Gutierre z has not moved in this court for authorization to file his Brady claim. The district court’s procedural ruling construing Mr. Gutierrez’s Brady claim as an unauthorized second or successive § 2255 claim and dismissing it for lack of jurisdi ction is not reasonably debata ble. Mr. Gutierrez next argues that “[t]he district court mischaract erized the True Rule 60 motion, which not only raisedthe procedural defects in the Court’s ruling, but also raised Fraud on the Court, and pr osecutorial misconduct through the knowing use of false evidence, and newly discovered Brady [violations].” COA. App. at 19. The district court did conclude that the Rule 60(b ) motion raised arguments about some procedural defects in the prior § 2255 proceedings , and it denied those arguments on the merits. Mr. Gutierrez does not quarrel with the district court’s dispos ition of those Rule 60(b) arguments. But he appears to ar gue that the district court sho uld have considered other arguments as Rule 60(b) argumen ts, not as successive § 2255 cla ims. With respect to the newly discovered Brady violations, we explained above why his Brady claim is a second or successive § 2255 c laim. Likewise, any claim for prosecutor ial misconduct in his underlying criminal p roceeding would be a c hallenge to Mr. Guti errez’s conviction and is therefore a second or successive § 2255 claim. Mr. Gutierrez also contends he raised a claim of fraud on the c ourt that should have been considered as a Rule 6 0(b) argument. But his argumen ts for fraud on the court relate to the alleged Brady violations that occurred duri ng his underlying criminal8 proceeding. We have acknowledge d that a pleading “alleging fra ud on the court in a federal habeas proceeding ” could be properly brought in a Rule 60(b) motion. Baker , 718 F.3d at 1207 (emphasis adde d). “But a motion alleging frau d on the court in a defendant’s criminal proceeding must be considered a second-or- successive collateral attack because it asserts or rea sserts a challenge to the defen dant’s underlying conviction.” Id

. Mr. Gutierrez’s claims of Brady violations, prosecutorial misconduct, and fraud on the court related to Brady violations in his criminal pro ceeding all assert or reassert challenges to his conviction. S uch arguments are properly brou ght in a § 2255 motion, not a Rule 60(b) motion. Reasona ble jurists could therefore no t debate the district court’s decision to treat these claims as second or successive § 2255 c laims, not Rule 60(b) arguments. III. Conclusion For the foregoing reasons, we de ny a COA and dismiss this appea l. We grant Mr. Gutierrez’s motion for leave to proceed withou t prepayment of costs or fees.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk