* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 16 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. RUBEN TOVAR,

Defendant-Appellant. No. 97-4080 (D.C. No. 96-CV-619) (D. Utah)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Mr. Tovar filed both his § 2255 motion and his Rule 60(b) motion after the

effective date of AEDPA. -2- The district court denied defendant-appellant RubenTovar’s motion for habeas relief filed pursuant to 28 U.S.C. § 2255. Over four months later, Mr. Tovar filed a motion for reconsideration which the district court construed as a motion seeking relief pursuant to Fed. R. Civ. P. 60(b). The district court denied the motion and Mr. Tovar appeals. Initially we must address whether we have jurisdict ion over this appeal. We recently held that a post-judgment Rule 60(b)(6) motion filed in a habeas proceeding is “a second habeas petition under the A ntiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’).” 1 Lopez v. Douglas , 141 F.3d 974, 975 (10th Cir. 1998) (Rule 60(b) motion filed after entry of judgment on 28 U.S.C. § 2254 petition). We emphasized that the restricti ons imposed on successive petitions by AEDPA, 28 U.S.C. § 2244(b), cannot be circumvented by a petitioner’s use of Rule 60(b). See id. Pursuant to § 2244(b), Mr. Tovar was required to ob tain prior authorization from this court before filing a secon d § 2255 motion in district court. As he failed to obtain this authorization, the district court lacked jurisdiction to decide his motion and we must vacat e the district court’s order.-3-

See id. at 975-76; United States v. Avila-Avila , 132 F.3d 1347, 1348-49 (10th Cir. 1997). We construe Mr. Tovar’s notice of appeal and brief on appeal as an implied application for leave to file a second § 22 55 motion in district court. See Lopez , 141 F.3d at 976. In his implied application, Mr. Tovar argues that the district court did not consider mitigating factors which would warrant a downward departure in his sentence. Mr. Tovar also contends his constitutional protections of equal protection and due process wer e violated by the Sentencing Commission’s decision to give preferential treatment to American citizens. Mr. Tovar has failed to make a prima facie sufficie nt to satisfy the AEDPA criteria for filing of a second habeas application. See § 2244(b)(3)(C). Accordingly, we VACATE the district court’s order d enying Mr. Tovar’s “motion for reconsideration” and we DENY the implied applic ation for leave to file a second § 2255 motion in district court. The government’s motion to dismiss this appeal for lack of jurisdiction to consider the dis trict court’s decision not to downwardly depart is DENIED as moot. The mandate shall issue forthwith. Entered for the Court

Michael R. Murphy Circuit Judge