F I LED

United States Court of Appeals

Tenth Circuit

January 19, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

KEITH V. WEATHERSBY,

Movant.

No. 09-3304

(D.C. Nos. 2:08-CV-2081-JWL &

2:98-CR-20076-JWL-3)

ORDER

Before KELLY, MURPHY, and HARTZ, Circuit Judges.

Keith V. Weathersby has filed a motion challenging the district court’s

transfer to this court of a claim he presented in a motion for reconsideration of the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence. The

district court transferred the claim because the court concluded that

Mr. Weathersby was attempting to assert a second or successive § 2255 claim

without prior authorization from this court. Mr. Weathersby asks this court to

remand the transferred claim back to the district court. We deny the motion for

remand.

In March 2002, a jury convicted Mr. Weathersby of conspiracy to possess

with intent to distribute cocaine and of possession with intent to distribute

cocaine or aiding and abetting the possession with intent to distribute cocaine. 

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He was sentenced to 292 months in prison. We affirmed his conviction and

sentence on direct appeal. See United States v. Weathersby, No. 02-3322, 2004

WL 407036 (10th Cir. Mar. 5, 2004) (unpublished). In February 2008,

Mr. Weathersby filed his § 2255 motion. In August 2008, the district court

denied the § 2255 motion, concluding it was untimely and there was no basis for

equitable tolling. Mr. Weathersby did not appeal from the denial of his § 2255

motion. In May 2009, Mr. Weathersby filed a motion for reconsideration of the

district court’s denial of his § 2255 motion, which the district court construed as a

motion seeking relief under Fed. R. Civ. P. 60(b)(6). The district court

considered two of the claims in the 60(b) motion and denied them on the merits. 

Mr. Weathersby did not appeal from that portion of the order and therefore those

claims are not before us. 

The district court determined that the third claim in Mr. Weathersby’s

motion for reconsideration was a second or successive § 2255 claim requiring

authorization under § 2255(h). As the district court explained, 

Mr. Weathersby argues that his sentence violates Apprendi [v. New

Jersey, 530 U.S. 466 (2000),] because the Court determined by a

preponderance of the evidence that the conduct for which he was

convicted and sentenced involved more kilograms of cocaine than the

jury determined his conduct involved. This argument does not

challenge a procedural ruling or defect in the integrity of the habeas

proceeding, nor did Mr. Weathersby previously raise this argument

on direct appeal or in his § 2255 motion. Mr. Weathersby’s

Apprendi claim asserts a federal basis for relief from his underlying

conviction, which the Court must consider a second or successive

habeas claim.

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In his motion for remand, Mr. Weathersby characterizes his claim as one 1

for ineffective assistance of counsel based on his lawyer’s failure to raise the

Apprendi challenge at sentencing. See Mot. for Remand at 5. Although this

claim is slightly different than the one presented to the district court, compare id.

with Mot. for Reconsideration at 4, our analysis is the same.

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Dist Ct. Order at 5. The district court then transferred the claim to this court in

order for Mr. Weathersby to seek authorization. 

Instead of seeking authorization, Mr. Weathersby has filed a motion for

remand in which he argues that the district court erred in transferring his claim

because he was challenging only a procedural ruling. See Mot. for Remand at 4. 

But he makes no procedural argument about the district court’s dismissal of his

§ 2255 motion as time-barred. Instead, he challenges the legality of his sentence

based on the Supreme Court’s decision in Apprendi, see Mot. for Remand at 5, a 1

claim that the district court correctly characterized as “assert[ing] a federal basis

for relief from his underlying conviction,” Dist. Ct. Order at 5. See Spitznas v.

Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (explaining that “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”). Because we

agree with the district court that Mr. Weathersby’s Apprendi claim is a second or

successive claim requiring authorization under § 2255(h), we DENY the motion

for remand. It appears, however, under our precedent in In re Cline that the

district court should not have transferred this claim to us under 28 U.S.C. § 1631. 

See In re Cline, 531 F.3d 1249, 1251-53 (10th Cir. 2008) (explaining that district

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courts should not automatically transfer unauthorized second or successive claims

to this court but should exercise their discretion under § 1631 to determine

whether or not it is in the interests of justice to transfer such claims).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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