NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0556n.06 No. 12-5994 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v. YOUNGMOON, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE O P I N I O N

Before: SILER, MOORE, an d ROGERS, Circuit Judges. KA REN NELSO N MOORE, Circuit Judge. Def endant- Appell an t Young Moon challeng es two district c ourt order s: R. 417 (Pag e I D #4681) and R. 420 (Pag e I D #4702). D. Ct. 1 Case No. 05-cr -00003, R. 421 (Notice of Appea l at 1) (Pag e I D #4703). I n its first order , the district court denied Moon relief under Fe dera l Rule of Civil Procedur e 60(b) beca use Moon failed to c ite “any authority indicating that Rule 60 provides a basis for voiding a judgme nt in a criminal case .” D. Ct. Case No. 05-cr -00003, R. 417 (07/10/2012 D. Ct. Orde r at 2) (Pag e I D #4682). In its second order , the district court denied Moon’s “Motion To Alter Or Amend A J udg ment Under Rule 59(e) ” beca use “Rule 59(e) of the Fe dera l Rules of Civil Procedur e does not apply in a criminal case .” D. Ct. Case No. 0 5 -c r- 0 0 003, R. 420 (07/30/2012 D. Ct. Orde r at 1) (Pag e I D #4702). Be cause we ag ree with the district court that neither rule of civil proce dure applies to criminal proce eding s, we These or ders a

ppear on the docket for District Court Case No. 05- cr- 00003, which is also 1 the ca se number listed on Moon’s notice of appe al.No. 12-5994

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AF F IRM the district court’s order s that denied Moon’s motions under Rules 60(b) and 59(e)

. United States v. Gibson , 424 F. App’x 461, 464 (6th Cir. 2011) (“Rule 60(b) does not provide relief from judgme nt in criminal proce eding s”); see United States v. McCalister , 601 F.3d 1086, 1087–88 (10th Cir. 2010); see also United States v. Be nder , 96 F. App’ x 344, 345 (6th Cir. 2004)). At the district court, Moon also challeng ed the judgme nt in her Fa lse Claims Act (F CA) case , District Court Ca se No. 06-cv- 00406, in the same motions that challeng ed her criminal conviction under Rules 60(b) and 59(e)

. The district court denied these mot i o n s i n two order s listed on the district court’s docket for Moon’s FCA case : R. 148 (Pag e I D #1013) and R. 155 (Pag e I D #1039). 2 Although Moon has not desig nated these district court order s for appea l, we have jurisdic tion to consider them beca

use “fa ilure to mention or misidentification of the ruling being appea led from does not dest ro y ap p el l ate jurisdiction as long as the intent to appea l is appar ent and the appellee suffe rs no prejudice ” and “cour ts have b ee n es p ec ially reluc tant to enfor ce strictly the notice of appea l require ments when such notice is filed by a pro se appellant.” United St ates v. W illis , 804 F.2d 961, 963 (6th Cir. 1986); see F E D . R. A P P . P. 3(c) (1)( B)

. Nonethele ss, we AF F IRM the district court’s orders that reje cte d M o on’s m otions under Rules 60(b) and 59(e) with respe ct t o the FCA judgme nt beca

use the motions wer e untimely and d o not otherwise demonstrate extraordinary circ umstances. Also at the district court, Moon listed her 28 U.S.C. § 2255 case , District Court Case No. 09- cv-00060, on the cover of her pro se Rule 60(b) motion. D. Ct. Case No. 05-cr -00003, R. 415 (Rule

These or ders a

ppear on the docke t for District Court Case No. 06- cv-00406. 2 2No. 12-5994

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6 0 (b ) M o t

. ) (Pag e I D #4518). The district court did not, howeve r, addre ss Moon’s Rule 60(b) motion with reg ard to her § 2255 case . I f the district court had addre ssed Moon’s Rule 60(b) motion with reg ard to her § 2255 case , it had two options. The district court could have deter mined that the motion was a proper Rule 60(b) motion, att acking “some defe ct in the integ rity of the” § 2255 proce eding s, and ruled on the motion. Gonzalez v. Crosby , 54 5 U. S

. 5 24, 532 (2005); see In re Nailor , 487 F.3d 1018, 1021–23 (6th Cir. 2007) (discussing the application of Gonzalez in § 2255 proce eding s). Alternatively , the district court could have deter mined that Moon’s Rule 60(b) motion

was actua lly a second or succe ssive § 2255 motion and transfe rre d the motion to this c ourt. See In re N ailor , 487 F.3d at 1023. The recor d befor e t h i s co u rt i s exceptionally muddled as t o whether Moon was attempting to file a proper Rule 60(b) motion or a second or succe ssive § 2255 motion. Compare D. Ct. Case No. 05-cr -00003, R. 412 (D. Ct. Orde r at 1) (Pag e I D #4513) (“The Def endant shall file a reply brief

. . . addre ssin g . . . wh et h er h er letter is intended to be filed as a second or

succe ssive Section 2255

. . . motion, or as a motion to be made under Rule 60(b)

. . . .”) with D. Ct. Case No. 05-cr -00003, R. 415 (Rule 60(b) Mot. at 1) (Pag e I D #4518). J udg ed either way , Moon’s Rule 60(b) motion or application to file a second or succe ssive § 2255 motion fails. The thrust of Moon’s motion, rea d as a proper Rule 60(b) motion, is t h at t h e g overnme nt withheld information during the course of litigating Moon’s § 2255 motion in violation of Brady v. Maryland , 373 U.S. 83 (1963); see F E D . R. C I V . P. 60(b)( 2)–(3)

. Moon’s motion, dated May 7, 2012, is untimely , howeve r, as it was filed more than a y ear afte r the district court’s judgme nt, dated J anuar y 29, 2010, and Moon has not otherwise demonstrated ex traordina ry circ umstances. D. Ct.

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Case No. 05-c r-00003, R. 415 (Rule 60(b) Mot.) (Pag e I D #4518); District Court Ca se No. 09-cv00060, R. 35 (D. Ct. Orde r at 1) (Pag e I D #531); see F E D . R. C I V . P. 60( c)( 1). The Brady materia l in question involved information from “Amg en litigation” about how much overf ill was contained in a vial of Procrit, a drug involved in Moon’s underly ing conviction. As the g overnme nt points out, this court has previously reje cted this argument when Moon raised it in her petition for rehe aring en banc in her § 2255 ca se. Six th Circuit Case No. 10-5116, P et. for Rehr’g En Ba nc at 7 n.1; Six th Circuit Case No. 10-5116, 01/25/2012 Orde r. Fur thermore , also noted by t h e governme nt, the materia l in question primarily involves an o t her drug , Ara nesp, not Procrit, and is not otherwise favor able to Moon. Finally , the Amg en litigation evidenc e surrounding Procrit has no eff ect on the larg er fra ud a ll e g a ti o n s f o r w h ic h Moon was convicted that involved the drug s Taxol and Camptosar. These fac ts do not demonstrate extraordinary circ umstances, nor would they be a b as i s for relief under Rule 60(b) if Moon’s motion wer e timely

. For these rea sons, we AF F IRM the denial of relief under Rule 60( b) with reg ard to Moon’s § 2255 c ase. Reading Moon’s Rule 60(b) motion and her brief on a

ppeal as a reque st to file a sec ond or

succe ssive § 2255 petition, we conclude that Moon has failed to show that this court should authorize her to f

ile a second or succe ssive § 2255 motion. I n order to obtain authorization, Moon must show: (1) newly discovere d evidenc e that, if proven and viewed in light of th e ev i d en ce as a whole, would be sufficie nt to establish by clea r and convincing evidenc e that no rea sonable fa ctfinder

would have f

ound the movant g uilty

of the off ense; or (2) a new rule of constitutional law, made retroa ctive to case s on collater al revie w by the Supreme Court, that wa s previously unavailable

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28 U.S.C. § 2255(h). Moon’s Brady argu m en t at t empt s to comport with the first cate g ory in § 2255(h); h o we v er , as discussed in the prec eding para g raph, the overf ill information from the Am gen litigation is not the ty pe “that, if proven and viewed in light of the evidenc e as a wh o l e, would be sufficie nt to establish b y c lear and convincing evidenc e that no rea sonable fac tfinder would have found the movant g uilty of the offe nse.” Id

. For these rea sons, we DENY Moon’s reque st to file a se cond or suc cessive § 2255 motion. For all of the re asons stated a bove, we AF F IRM the judg ment of the district cour t.

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