UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. WILLIAM GENE EATON, Defendant-Appellant. No. 12-6089 (D.C. No. 5:98-CR-00183-R-1) (W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before MURPHY , EBEL , and HARTZ , Circuit Judges.

Defendant William Gene Eaton, a fede ral prisoner appearing pro se, seeks a certificate of appealability (C OA) to appeal the district court’s dismissal of his motion to vacate all of the ru lings in his criminal case. We deny a COA and dismiss the appeal. Mr. Eaton was convicted in 1998 of two counts of armed bank robbery; carrying a firearm during and in relation to a crime of vi olence; possessing a firearm after a former felony conviction; three counts of obstruction of justice; and two counts of tampering with a witness. He was sentenced to life imprisonment and his

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### August 20, 2012 Elisabeth A. Shumaker Clerk of Court- 2 - conviction and sentence were af firmed on direct appeal. United States v. Eaton , No. 99-6151, 2000 WL 293789, at *1 (10th Ci r. Mar. 21, 2000). He filed his first 28 U.S.C. § 2255 motion in 200 0, claiming his indictment was deficient and raising numerous claims of ineffectiv e assistance of counsel. The district court denied this § 2255 motion, and we deni ed Mr. Eaton a COA. United States v. Eaton , 20 F. App’x 763, 772 (10th Cir. 2001). Before a federal prisoner may file a second or successive § 2255 motion, the prisoner must first obtain an order from the circuit court authorizi ng the district court to consider the motion. 28 U.S.C. §§ 22 44(b)(3)(A), 2255(h). Any post-conviction motion filed after an initial § 2255 motion will be treated as a successive § 2255 motion—and thus must comply with § 2255 (h)’s authorization requirement—if it in substance or effect asserts or reasserts a federal basis fo r relief from the prisoner’s conviction. See United States v. Nelson , 465 F.3d 1145, 1148- 49 (10th Cir. 2006) (“It is the relief sought; not [the] pleading’s title, th at determines whether the pleading is a § 2255 motion.”). Mr. Eaton attempted to file an unaut horized second or successive § 2255 motion in 2006, but the district court tran sferred the matter to this court and we denied him authorization. In 2008, Mr. Ea ton again sought to file an unauthorized second or successive § 2255 mo tion, which the district c ourt dismissed for lack of jurisdiction. See In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (“A district court does not have jurisdiction to addre ss the merits of a second or successive- 3 - § 2255 . . . claim until this court has grante d the required authori zation.”). Mr. Eaton filed another motion in 2008 th at the district court determ ined was another attempt to file an unauthorized second or successive § 2255 motion and tr ansferred to this court. Mr. Eaton did not seek author ization to file his motion, but instead sought a remand, which we denied. In 2010, Mr. Eaton file d a motion to set aside his judgment, which the district court again construed as an attempt to file an unauthorized second or successive motion and dismissed for lack of jurisdiction. Most recently, Mr. Eaton f iled a Fed. R. Civ. P. 60( b) motion in March 2012. In it, he again challenged his 1998 convicti on, claiming, as he did in his first § 2255 motion, that his indictment was deficient a nd that his counsel wa s ineffective. The district court again determined it was an unauthorized § 2255 mo tion and dismissed it for lack of jurisdiction. Mr. Eaton appeals. When a district court dismisses a § 225 5 motion for lack of jurisdiction, the prisoner must obtain a COA to appeal. United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008). In order to obtain a COA, Mr. Eaton must show both “that jurists of reason would find it deba table whether the petition stat es a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was corr ect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Mr. Eaton’s Rule 60(b)-lab eled motion was correctly treated by the district court as a second or successive claim beca use it asserted, in substance and effect, a federa l basis for relief from his 1998 conviction, rather than- 4 - challenging the integrity of his original § 2255 proceeding. See United States v. Pedraza , 466 F.3d 932, 933 (10th Cir. 2006) (explaining when a Rule 60(b) motion must comply with § 2255(h)’s authorization re quirements). Because no reasonable jurist would find th e district court’s decision debatable, we DENY the requested COA. The appeal is DISMISSED. The request for leave to proceed in forma pauperis is DENIED.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk