*

After examining the briefs and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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

June 10, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 09-2220

v. (D. New Mexico)

RAFER HARRISON,

Defendant - Appellant.

(D.C. No. 1:03-CV-01435-LH-KBM)

ORDER AND JUDGMENT*

Before HARTZ, SEYMOUR, and EBEL, Circuit Judges.

Rafer Harrison appeals the district court’s order denying his motion under

Fed. R. Civ. P. 60(b). Because his motion must be treated as a successive motion

for habeas relief under 28 U.S.C. § 2255, we vacate the district court’s order for

lack of subject-matter jurisdiction, construe Mr. Harrison’s notice of appeal and

appellate brief as an application for authorization to file a successive § 2255

motion, and deny authorization.

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I. BACKGROUND

Mr. Harrison was convicted of sexual-abuse offenses in the United States

District Court for the District of New Mexico. Since then, he has sought relief in

this court on four occasions. After his conviction was affirmed on appeal, see

United States v. Harrison, 296 F.3d 994 (10th Cir. 2002), he moved for habeas

relief under 28 U.S.C. § 2255, alleging (1) that the jury was not selected from a

fair cross-section of the community and (2) that he was denied effective

assistance of counsel. When the magistrate judge issued her recommendation that

the § 2255 motion be denied, he moved to amend his motion to expand the

grounds for his ineffective-assistance claim. The district court, treating the

motion to amend as stating objections to the magistrate judge’s recommendation,

denied them as waived and dismissed the § 2255 motion with prejudice. We

denied his application for a certificate of appealability (COA), see 28 U.S.C.

§ 2253(c)(1)(B) (requiring a COA to appeal dismissal of § 2255 motion), and

dismissed the appeal, see United States v. Harrison, 120 F. App’x 761 (10th Cir.

2005). 

Three years later Mr. Harrison filed a “Motion To Re-Open a 28 U.S.C.

2255 Habeas Corpus Action A Previous Final Habeas Judgment Pursuant to Fed.

R. Civ. P. Rule 60(b).” R. at 108. The motion asserted that the district court had

erred in dismissing both his motion to amend and his ineffective-assistance claim

in the § 2255 motion. The court construed this motion as a second § 2255 motion

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and dismissed it for lack of jurisdiction. Mr. Harrison sought our authorization to

file a second or successive § 2255 motion, but we denied his request.

Mr. Harrison’s present trip to this court concerns his “Motion in nature of

your F.R.C.P. 60(b)(3)(6) and 12(b)(1)(2)(3) and (7),” filed in the district court

on August 3, 2009. R. at 206. As we understand his motion, Mr. Harrison

contends that the government committed fraud by failing to disclose that it lacked

jurisdiction and statutory authority to prosecute him. His jurisdictional arguments

appear to be based on the absence of any interstate-commerce allegation in the

charges against him. The district court denied the motion, ruling that it was not

proper under the Rules of Civil Procedure and declining to recharacterize it as a

§ 2255 motion. On appeal Mr. Harrison abandons the Rule 12(b) ground but

argues that the court erred in denying his Rule 60(b) motion. In addition, an

attachment to his brief seeks this court’s authorization under 28 U.S.C.

§ 2244(b)(3)(A) for the district court to consider his jurisdictional arguments in a

second-or-successive habeas motion.

II. DISCUSSION

Under the Antiterrorism and Effective Death Penalty Act of 1996, a

prisoner cannot file a “second or successive” motion under § 2255 unless it is

“certified . . . by a panel of the appropriate court of appeals to contain—(1) newly

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discovered evidence . . . 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). 

The Supreme Court has explained that a Rule 60(b) motion should be

construed as a successive habeas petition if it (1) “seeks to add a new ground for

relief,” or (2) “attacks the federal court’s previous resolution of a [habeas] claim

on the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). But a Rule 60(b)

motion is not a successive petition if it attacks “some defect in the integrity of the

federal habeas proceedings.” Id. Although Gonzalez dealt with § 2254

applications for relief, we have applied its analysis to § 2255 motions. See

United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). Because

Mr. Harrison proceeded pro se, we construe his motion liberally. See id. at 1148. 

Our first task is to decide whether Mr. Harrison’s motion attacks the

integrity of the habeas proceedings. “If the alleged fraud on the court relates

solely to fraud perpetrated on the federal habeas court, then the motion will be

considered a true 60(b) motion” and not a successive petition. Spitznas v. Boone,

464 F.3d 1213, 1216 (10th Cir. 2006). But “if the fraud on the habeas court

includes (or necessarily implies) related fraud on the . . . federal district court that

convicted and/or sentenced the movant . . . , then the motion will ordinarily be

considered a second or successive petition because any ruling would inextricably

challenge the underlying conviction proceeding.” Id. 

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Mr. Harrison’s motion does not challenge the integrity of the habeas

proceeding. Rather, it asserts that the government committed fraud when it failed

to disclose to the district court an alleged lack of authority and jurisdiction to

prosecute. Because the fraud allegation concerns the federal court that convicted

Mr. Harrison, we construe his Rule 60(b) motion as a successive § 2255 motion. 

The district court therefore had no subject-matter jurisdiction over the motion. 

See Nelson, 465 F.3d at 1149. 

We may, however, treat Mr. Harrison’s notice of appeal and appellate brief

as an application to file a successive § 2255 motion. See id. But Mr. Harrison

has alleged neither newly discovered evidence nor a new rule of law that applies

retroactively. Accordingly, we deny his application. 

III. CONCLUSION

We VACATE the district court’s order for lack of jurisdiction. We DENY

Mr. Harrison’s application for authorization to file a successive § 2255 motion

and his application for a COA.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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