RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0020p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

I N RE : A DARUS M AZIO B LACK , Movant

. ┐ │ │ ┘ No. 17-2147

On Motion to Authorize the Filing of a Second or Successive Application for Habeas Corpus Relief

and Motion for a Certifi cate of Appealability. Nos. 2:07-cr-20535-1; 2:13-cv-14185; Eastern District of Mi chigan at Detroit.

Decided and Filed: January 31, 2018 Before: GUY, DAUGHTREY, and SUTTON, Circuit Judges.

_________________ COUNSEL
ON RESPONSE: Patricia Gaedeke, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Respondent. ON MOTIONS: Adarus Black, Tucson, Arizona, pro se.

_________________ ORDER

_________________ PER CURIAM. Adarus Mazio Black, a fede ral prisoner proceeding pro se, moves for authorization to proceed with a second or succes sive motion to vacate under 28 U.S.C. § 2255. He has also moved for a cer tificate of appealability.
Black was convicted in separate jury trials of conspiracy to possess with intent to distribute cocaine and marijuana an d possession with intent to dist ribute cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and escape or attempte d escape from federal custody, in violation of 18 U.S.C. § 751(a). The district court sent enced him to an effective term 

### >No. 17-2147 In re Black Page 2

of life in prison. We affirmed the district court’s judgment. United States v. Black , 465 F. App’x 510 (6th Cir. 2012). In 2013, Black sought re lief under § 2255. The district court denied the motion to vacate and refused to issu e a certificate of appealability.
In 2017, Black filed a motion under Federal Rule of Civil Procedure 60(b), seeking relief from the district court’s order denying hi s § 2255 motion. Black argued that relief was warranted for five reasons: (1) the district cour t misapplied the law as to his claim that his trial counsel had a conflict of interest; (2) the district court misapplied th e law as to his claim that his trial counsel rendered ineffective assistance in connection with a plea offer; (3) the district court erred by denying his § 2255 motion prior to receivi ng a supplemental brief; (4) the government committed fraud upon the court during his criminal tria l; and (5) the district court erred by failing to conduct an evidentiary hearing. The district court determined that the first, second, and fourth grounds for relief were second or successive claims under § 2255 a nd transferred them to this court for a determination of whether Black may proceed. The district court otherwise denied Black’s Rule 60(b) motion.
In this case, we must decide whether the di strict court properly tran sferred Black’s first, second, and fourth grounds for 60(b) relief to this court as sec ond or successive “claims” under § 2255. In re Nailor , 487 F.3d 1018, 1021–23 (6th Cir. 2007). It did if Black sought to add a new ground for relief or attacked the district court’s merits decision. See Gonzalez v. Crosby , 545 U.S. 524, 532 (2005). It did not if he merely a ttacked a defect in the integrity of the federal habeas proceedings. Id.
The first two grounds for relief ar e easy: Black argues that th e district court “applied the wrong standard” or “applied the wrong doctrine” to his arguments about trial counsel’s conflicts of interest and ineffective assi stance. A.R. 13 at 5–6. Those ar guments are prototypical “attacks [on] the federal court’s previous resolution of [the] claim[s] on the merits .” Gonzales , 545 U.S. at 532 (emphasis original).
The remaining ground is more complicated. Black argues that the Assistant U.S. Attorney “perpetrated fraud on the Court” before and during his criminal trial. See A.R. 13 at 7, 19–22. To be sure, Gonzales states that fraud on the court “is one example of . . . a defect” inNo. 17-2147 In re Black Page 3

federal habeas proceedings. 545 U.S. at 532 n.5. But it referred to “[f]raud on the federal habeas court .” Id. (emphasis added). Because Black’s fraud-on-the-court argument concerns only the prosecutor’s conduct during his trial, he ha s not called into question “the integrity of the federal habeas proceedings.” Id. at 532. Every Circuit that has addre ssed this question agrees. See Pizzuto v. Ramirez , 783 F.3d 1171, 1180–81 (9th Cir. 2015); Spitznas v. Boone , 464 F.3d 1213, 1216 (10th Cir. 2006); cf. Fierro v. Johnson , 197 F.3d 147, 153–54 (5th Cir. 1999); United States v. MacDonald , 161 F.3d 4, at *3 (4th Cir. 1998) (Table) (AEDPA does “not prevent a party who had previously filed a habeas petition from asserting that a prior petition had been denied based on fraud, unless the grounds for fraud themselves should have been raised in an earlier proceeding.”).
Black does not argue that the allegedly fr audulent conduct during the trial proceedings tainted the district court’s assessment of his federal habeas petition, for example, because government lawyers incorporated ta inted trial-court evidence into the habeas-court record. But even if he did, we have rejected such a fraud-by-incorporati on theory before. See Thompkins v. Berghuis , 509 F. App’x 517, 519–20 (6th Cir. 2013); see also Carter v. Anderson , 585 F.3d 1007, 1011 (6th Cir. 2009) (noting that fraud on th e court requires proof that fraudulent conduct was willfully “directed to” the court that was deceived).
Because the three transferred grounds for re lief raise successive claims, we must also decide whether to authorize Black to proceed with those claims. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h). We cannot do so. First, Black admits that he has already presented his two trial counsel claims. A look at his first § 2255 petition confirms that. See R. 241 at 26– 27 (conflict of interest), 33–34 (ine ffective plea assistance). B ecause Black “presented [these claims] in a prior application,” they “shall be dismissed.” 28 U.S.C. 2244(b)(1). Second, Black has not made a prima facie showing that his fr aud-on-the-court claim re lies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court” or “newly discovered evidence” that would be sufficie nt to establish that “no reasonable factfinder would have found [him] guilty.” 28 U.S.C. § 2255(h). I ndeed, he concedes that all three of his claims “do not meet the criter ia of 28 U.S.C. § 2244, as [they are] not [based on] newly discovered evidence, or a new ru le of law.” A.R. 14 at 1; see also A.R. 16 at 3.No. 17-2147 In re Black Page 4

Accordingly, we DENY Black’s motion for authorization to proceed with a second or successive motion to vacate and his moti on for a certificate of appealability.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk