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. T he district court construed the Rule 60(b) motion as an una uthorized second or successive 2 8 U.S.C. § 2255 motion and dismissed it for lack of jur isdiction. 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 re asons that follow, we deny a COA and dismiss the

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. FILED United States Court of Appeals Tenth Circuit 

### January 23, 2019
Elisabeth A. Shumaker Clerk of Court2 Ms. Savage was convicted of three criminal charges in two cases —in the first case she was convicted of possession w ith intent to distribute metha mphetamine and possessing a firearm after conviction of a felony. In the seco nd case, she was convicted of theft of government funds. She was sentenced to a total ter m of imprisonment of 78 months. The convictions were based on guilty pleas pursuant to plea agreements. She did appeal, but later withdr ew her appeals after the govern ment moved to enforce the appeal waivers in her plea agre ements. She then filed motions to vacate or correct her sentences under § 2255, which were denied. Ms. Savage then filed the underl ying Rule 60(b) motion. The di strict court determined the Rule 60(b) motio n was an unauthorized second or successive § 2255 motion and dismissed it for lack of jurisdiction. Ms. Savage filed an opening bri ef, which we construe as a reque st 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 wh ether the petition states a va lid claim of the denial of a constitutional right and that juri sts of reason would find it d ebatable 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 un less he or she 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).3 A Rule 60(b) motion should be treated as a second or successive § 2255 motion if it challenges the defendant’s co nviction or sentence rather tha n 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 th e petitioner’s underlying convi ction.”) In her Rule 60(b) motion, Ms. S avage argued she was entitled to sentencing relief because she was erroneously assesse d three criminal history poi nts for a prior federal case from 1995 and her attorney failed to object. She also arg ued her attorney erroneously stated in her sentenc ing memorandum that she was co nvicted of a weapons charge. In concluding the Rule 60( b) motion should be construe d as a successive § 2255 motion, the district court obser ved that “[n]ot only is defenda nt challenging her sentence in her motion, she is reassert ing a federal basis for relief,” and noted that Ms. Savage had previously raised these same arg uments in a prior § 2255 motion . R., Vol. I at 24. Because Ms. Savage had not obta ined the proper authorization fr om 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. Savag e 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 cla ims are properly brought in a Rule 60(b) motion. While it is t rue that an argument that the district court failed to consider a habeas claim “assert s a defect in the integrity of t he federal habeas4 proceedings,” and is properly br ought 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 i n her Rule 60(b) motion all related to alleged sentencing errors and ineffectiv e assistance of counsel in rela tion to her sentencing. All of Ms. Savage’s arguments i n her Rule 60(b) motion asserted or reasserted a federal basis for relief from he r sentence. Such arguments are properly brought in a § 2255 motion, not a Rule 60(b) m otion. Ms. Savag e previously filed a § 2255 motion and she did not receive authoriza tion from this court to file a successive § 2255 motion. Reasonable jurists could not deba te the correctness of the dist rict court’s procedural ruling to construe Ms . Savage’s Rule 60(b) motion as an unautho rized second or successive § 2255 motion and di smiss it for lack of jurisdictio n. Accordingly, we deny Ms. Savage’s request for a COA and dismiss this matter.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk