UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

TAWNY BRYCE SAVAGE, 

 Defendant - Appellant. 

No. 18-6191 

(D.C. Nos. 5:16-CV-00082-HE & 

5:14-CR-00158-HE-1) 

(W.D. Okla.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY

_________________________________ 

Before BRISCOE, KELLY, and O’BRIEN, Circuit Judges. 

_________________________________ 

Tawny Bryce Savage, a federal prisoner appearing pro se, filed a Fed. R. Civ. P. 

60(b) motion to “correct her sentence.” R., Vol. II at 284. The district court construed 

the Rule 60(b) motion as an unauthorized second or successive 28 U.S.C. § 2255 motion 

and dismissed it for lack of jurisdiction. To appeal from that decision, Ms. Savage must 

obtain a certificate of appealability (COA). See United States v. Harper, 545 F.3d 1230, 

1233 (10th Cir. 2008). For the reasons that follow, we deny a COA 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 This order is not binding precedent except under the doctrines of law of the case, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 23, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

Ms. Savage was convicted of three criminal charges in two cases—in the first case 

she was convicted of possession with intent to distribute methamphetamine and 

possessing a firearm after conviction of a felony. In the second case, she was convicted 

of theft of government funds. She was sentenced to a total term of imprisonment of 

78 months. The convictions were based on guilty pleas pursuant to plea agreements. 

She did appeal, but later withdrew her appeals after the government moved to enforce the 

appeal waivers in her plea agreements. She then filed motions to vacate or correct her 

sentences under § 2255, which were denied. 

Ms. Savage then filed the underlying Rule 60(b) motion. The district court 

determined the Rule 60(b) motion was an unauthorized second or successive § 2255 

motion and dismissed it for lack of jurisdiction. 

Ms. Savage filed an opening brief, which we construe as a request for a COA to 

appeal from the dismissal of her motion. To obtain a COA, she must show 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. Savage has failed to make this showing. 

A prisoner may not file a second or successive § 2255 motion unless he or she first 

obtains an order from the circuit court authorizing the district court to consider the 

motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district 

court lacks jurisdiction to address the merits of a second or successive § 2255 motion. 

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). 
3 

A Rule 60(b) motion should be treated as a second or successive § 2255 motion if 

it challenges the defendant’s conviction or sentence rather than a procedural error in the 

prior § 2255 proceeding. See United States v. Nelson, 465 F.3d 1145, 1147-49 (10th Cir. 

2006); see also Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (“A 60(b) 

motion is a second or successive petition if it in substance or effect asserts or reasserts a 

federal basis for relief from the petitioner’s underlying conviction.”) 

In her Rule 60(b) motion, Ms. Savage argued she was entitled to sentencing relief 

because she was erroneously assessed three criminal history points for a prior federal 

case from 1995 and her attorney failed to object. She also argued her attorney 

erroneously stated in her sentencing memorandum that she was convicted of a weapons 

charge. In concluding the Rule 60(b) motion should be construed as a successive § 2255 

motion, the district court observed that “[n]ot only is defendant challenging her sentence 

in her motion, she is reasserting a federal basis for relief,” and noted that Ms. Savage had 

previously raised these same arguments in a prior § 2255 motion. R., Vol. I at 24. 

Because Ms. Savage had not obtained the proper authorization from this court to file a 

successive § 2255 motion, the district court dismissed the Rule 60(b) motion for lack of 

jurisdiction. 

In her request for a COA, Ms. Savage asserts the district court failed to rule on the 

merits of the claims she raised in her § 2255 motion. She then states that arguments 

challenging the district court’s failure to rule on certain claims are properly brought in a 

Rule 60(b) motion. While it is true that an argument that the district court failed to 

consider a habeas claim “asserts a defect in the integrity of the federal habeas 
4 

proceedings,” and is properly brought in a Rule 60(b) motion, Spitznas, 464 F.3d at 1225, 

Ms. Savage did not actually raise this argument in her Rule 60(b) motion. Instead, she 

simply stated she filed a § 2255 motion and the district court “denied said relief.” 

R., Vol. II at 284. The arguments in her Rule 60(b) motion all related to alleged 

sentencing errors and ineffective assistance of counsel in relation to her sentencing. 

All of Ms. Savage’s arguments in her Rule 60(b) motion asserted or reasserted a 

federal basis for relief from her sentence. Such arguments are properly brought in a 

§ 2255 motion, not a Rule 60(b) motion. Ms. Savage previously filed a § 2255 motion 

and she did not receive authorization from this court to file a successive § 2255 motion. 

Reasonable jurists could not debate the correctness of the district court’s procedural 

ruling to construe Ms. Savage’s Rule 60(b) motion as an unauthorized second or 

successive § 2255 motion and dismiss it for lack of jurisdiction. Accordingly, we deny 

Ms. Savage’s request for a COA and dismiss this matter. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk