UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL BAZEZA MAZUN,

Defendant-Appellant.

No. 09-1340

(D.C. Nos. 99-CV-00882-REB and 

96-CR-00208-REB)

(D. Colo.)

ORDER AND JUDGMENT*

Before HARTZ, SEYMOUR and EBEL, Circuit Judges. 

 Defendant-Appellant Daniel Bazeza Mazun has filed a notice of appeal from the 

district court’s order denying his motion under Federal Rule of Civil Procedure 60(b)(4), 

which seeks to reopen the district court’s denial of his 28 U.S.C. § 2255 motion on the 

ground that his underlying conviction is void. He also seeks a certificate of appealability 

 

* After examining appellant=s brief and the appellate record, this panel has 

determined unanimously that oral argument would not materially assist the determination 

of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is 

therefore ordered submitted without oral argument. This order and judgment 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 

February 16, 2010

Elisabeth A. Shumaker 

Clerk of Court

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from this court. We conclude that Mr. Mazun’s Rule 60(b) motion must be treated as a 

second § 2255 motion, and therefore vacate the district court’s order for lack of subjectmatter jurisdiction, treat the notice of appeal and request for a certificate of appealability 

as an implied application for authorization to file another § 2255 motion, and deny 

authorization. 

I. Background 

 In 1997, Mr. Mazun was convicted of conspiracy to distribute methamphetamine 

and sentenced to 324 months in prison. We affirmed his conviction and sentence on 

direct appeal. United States v. Mazun, 153 F.3d 729 (10th Cir. 1998) (unpublished table 

disposition). In 1999, Mr. Mazun filed a motion pursuant to 28 U.S.C. § 2255, which the 

district court denied. Mr. Mazun sought permission from this court to file a successive 

§ 2255 motion in district court in 2005, but we denied this request. Mazun v. United 

States, No. 05-1166 (10th Cir. July 5, 2005); see also 28 U.S.C. § 2255(h) (requiring 

approval of court of appeals before filing a second or successive § 2255 motion). 

 On April 3, 2009, Mr. Mazun filed a “Motion under Federal Rules of Civil 

Procedure 60(b)(4)” in the district court, seeking relief from the district court’s denial of 

his original § 2255 motion. In that motion, Mr. Mazun argued that the district court’s 

failure to “submit to the jury an essential element of the crime—the type of drugs and the 

drug quantity—is a jurisdictional defect which renders [the district court’s] judgment 

void” under Rule 60(b). (R. at 10.) The district court denied this motion “principally on 

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the ground that Fed. R. Civ. P. 60(b)(4) is not available to federal prisoners to challenge 

the validity of the criminal judgments against them.” (R. at 59.) 

II. Discussion 

 Federal prisoners may only bring a Rule 60(b) motion in a § 2255 proceeding if 

the motion challenges either 

a procedural ruling of the habeas court which precluded a merits 

determination of the habeas application . . . or . . . a defect in the integrity 

of the federal habeas proceeding, provided that such a challenge does not 

itself lead inextricably to a merits-based attack on the disposition of a prior 

habeas petition. 

Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006); see also In re Lindsey, 582 

F.3d 1173, 1175 (10th Cir. 2009) (per curiam) (applying Spitznas to § 2255 proceedings.) 

If the Rule 60(b) motion does not meet either of these criteria, then it should be treated as 

a second or successive § 2255 motion, which requires approval from this court before it 

can be brought in district court. Spitznas, 464 F.3d at 1216-17; see also 28 U.S.C. 

§ 2255(h). If the district court determines that the Rule 60(b) motion actually is an attack 

on the merits of the prior § 2255 ruling, then it should either refer the matter to this court 

for authorization under § 2255(h), or dismiss the motion for lack of jurisdiction. 

Spitznas, 464 F.3d at 1227. 

 Mr. Mazun maintains that his Rule 60(b) motion raises only a procedural 

challenge, rather than a substantive challenge, to the district court’s ruling on his § 2255 

motion. Specifically, Mr. Mazun contends that the district court lacked jurisdiction to 

rule on his § 2255 motion because the judgment entered against him in the criminal case 

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was void due to improper jury instructions. According to Mr. Mazun, this is a 

procedural challenge because the district court dismissed the claim of improper jury 

instructions in his original § 2255 motion on the ground that the claim was time-barred. 

But Mr. Mazun does not contest the determination that his claim was in fact time-barred. 

Instead, he contends that his underlying conviction is void, and that the district court 

therefore did not have jurisdiction to deny his § 2255 motion. 

 Accordingly, this challenge, “in substance or effect[,] asserts . . . a federal basis for 

relief from the petitioner’s underlying conviction,” id. at 1215, because finding in favor 

of Mr. Mazun would require the court to conclude that the allegedly improper jury 

instructions offered during his trial render the judgment against him void. A challenge to 

one’s conviction is the proper subject of a § 2255 motion, not a Rule 60(b) motion. See

In re Cline, 531 F.3d 1249, 1253 (10th Cir. 2008) (stating that “a claim nominally filed 

under Rule 60(b) in a habeas proceeding is, in substance, a successive habeas claim if it 

asserts or reasserts a substantive challenge to the validity of the conviction”). We 

therefore agree with the district court that Mr. Mazun’s Rule 60(b) motion “challenge[s] 

the validity of the criminal judgment[] against” him (R. at 59), and is not a “true” Rule 

60(b) motion, but rather a second § 2255 motion. 

 On this basis, the district court should have either referred the matter to this court 

to consider whether to certify a second or successive § 2255 motion, or dismissed the 

matter for lack of subject-matter jurisdiction. Spitznas, 464 F.3d at 1227. Instead, the 

district court denied the motion. Because Mr. Mazun’s Rule 60(b) motion was in 

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substance a second § 2255 motion, however, the district court lacked subject-matter 

jurisdiction to do so. Accordingly, we must vacate the district court’s order denying Mr. 

Mazun’s Rule 60(b) motion. 

 We may, however, treat Mr. Mazun’s notice of appeal and request for a certificate 

of appealability as an application to this court for leave to file a second § 2255 motion. 

In United States v. Nelson, we treated a prisoner’s notice of appeal and appellate brief as 

an application for leave to file a second § 2255 motion when the district court improperly 

denied—rather than dismissed for lack of jurisdiction—the prisoner’s motion to amend 

his § 2255 motion pursuant to Federal Rule of Civil Procedure 15. 465 F.3d 1145, 1149 

(10th Cir 2006). We will construe Mr. Mazun’s appellate filings here in the same 

manner. 

 Section 2255(h) provides: 

A second or successive motion must be certified as provided in section 

2244 by a panel of the appropriate court of appeals to contain-- 

(1) newly discovered evidence that, if proven and viewed in light of the 

evidence as a whole, would be sufficient to establish by clear and 

convincing evidence that no reasonable factfinder would have found the 

movant guilty of the offense; or 

(2) a new rule of constitutional law, made retroactive to cases on collateral 

review by the Supreme Court, that was previously unavailable. 

28 U.S.C. § 2255(h). Here, Mr. Mazun has not identified any newly discovered evidence 

or new rules of constitutional law with retroactive applicability that would afford him 

relief under § 2255. We therefore deny leave to file a second motion. 

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III. Conclusion

 We VACATE the judgment of the district court; DENY Mr. Mazun’s implied 

application for leave to file a second § 2255 motion; and DISMISS his claims and action. 

We DENY Mr. Mazun’s motion for leave to proceed in forma pauperis. 

ENTERED FOR THE COURT 

David M. Ebel 

Circuit Judge 

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