UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ARNOLD ZALER, 

 Defendant - Appellant. 

No. 14-1474 

(D.C. Nos. 1:08-CR-00089-RM-1 & 

1:12-CV-02925-RM) 

(D. Colo.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before GORSUCH, EBEL, and MORITZ, Circuit Judges. 

 

 Arnold Zaler seeks to appeal from the district court’s dismissal of his “Motion 

to Vacate Sentence Based on Fraud Upon the Court” as an unauthorized second 

28 U.S.C. § 2255 motion that the district court lacked jurisdiction to consider. We 

deny a certificate of appealability (COA) and dismiss this matter. 

 After being convicted of several fraud charges and unsuccessfully appealing 

his concurrent 15-year sentences, see United States v. Zaler, 405 F. App’x 301, 302, 

317 (10th Cir. 2010), Mr. Zaler pursued relief under § 2255, asserting that the district 

court had improperly increased his sentences because the district judge had an 

 

* This order is not binding precedent except under the doctrines of law of the 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 11, 2015

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-1474 Document: 01019383880 Date Filed: 02/11/2015 Page: 1 
- 2 - 

affinity with Judaism and was offended that Mr. Zaler, who is a Jew, victimized other 

Jews. The § 2255 motion was denied as untimely, and this court denied a COA. 

See United States v. Zaler, 537 F. App’x 808, 809 (10th Cir. 2013). 

 In 2014, through counsel, Mr. Zaler filed a “Motion to Vacate Sentence Based 

on Fraud Upon the Court” re-raising the claims from his § 2255 motion. Mr. Zaler 

asserted that this motion, based upon Hazel-Atlas Glass Co. v. Hartford-Empire Co., 

322 U.S. 238 (1944), was “distinct from a 2255 motion,” and therefore it was “not a 

second or successive 2255 motion that must be certified by the Tenth Circuit 

pursuant to 28 U.S.C. § 2255(h).” Aplt. App. at 121. The district court disagreed. 

Relying on United States v. Baker, 718 F.3d 1204 (10th Cir. 2013), it applied the 

authorization requirements and dismissed the motion for lack of jurisdiction. 

 Before this court, Mr. Zaler, still represented by counsel, asserts that “an 

actual motion for fraud upon the court filed pursuant to Hazel-Atlas is not a 2255 

motion. If Zaler is correct, the district court order dismissing Zaler’s motion for 

fraud upon the court is a final decision that does not require a COA . . . .” Aplt. Br. 

at 9. As discussed below, however, Mr. Zaler is not correct; the district court was. 

Therefore, Mr. Zaler must obtain a COA. See United States v. Harper, 545 F.3d 

1230, 1233 (10th Cir. 2008). To do so, he must show “that jurists of reason would 

find it debatable whether the petition states a valid claim of the denial of a 

constitutional right and that jurists of reason would find it debatable whether the 

Appellate Case: 14-1474 Document: 01019383880 Date Filed: 02/11/2015 Page: 2 
- 3 - 

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 

484 (2000). 

 In Baker, this court held that a motion alleging fraud on the court in the 

underlying criminal proceeding, brought under Fed. R. Civ. P. 60(d)(3) and 

Hazel-Atlas, was subject to the authorization requirements of § 2255(h). 718 F.3d at 

1207-08. Like the district court, we see Mr. Zaler’s efforts to distinguish Baker as “a 

distinction without a difference.” Aplt. App. at 283. Mr. Zaler seeks to attack the 

validity of his sentences, a quintessential § 2255 claim, and Baker requires his filing 

to be considered as a second § 2255 motion. Therefore, no reasonable jurist could 

debate the court’s decision to dismiss the motion for lack of jurisdiction. See United 

States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006) (“[I]f the prisoner’s pleading 

must be treated as a second or successive § 2255 motion, the district court does not 

even have jurisdiction to deny the relief sought in the pleading.”). 

 Relying on McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), which was decided 

weeks after Baker, Mr. Zaler suggests that the courts’ equitable power to consider a 

claim of fraud upon the court survived the enactment of the Antiterrorism and 

Effective Death Penalty Act (AEDPA). McQuiggin held that when a prisoner made a 

convincing actual-innocence claim in his first federal habeas application, the courts 

could apply an equitable exception to AEDPA’s one-year limitations period. Id. at 

1931-34. Pointing to McQuiggin’s statement that “we will not construe a statute to 

displace courts’ traditional equitable authority absent the clearest command,” id. at 

Appellate Case: 14-1474 Document: 01019383880 Date Filed: 02/11/2015 Page: 3 
- 4 - 

1934 (internal quotation marks omitted), Mr. Zaler argues that “McQuiggin clearly 

reaffirms that absent a clear congressional command, courts are not to construe 

‘actual’ motions for fraud upon the court under AEDPA so as to displace the courts’ 

equitable power,” Aplt. Br. at 26. 

 It was important in McQuiggin, however, that the prisoner sought to bring an 

untimely first habeas application. 133 S. Ct. at 1934. Notably, McQuiggin also 

recognized that Congress, through 28 U.S.C. § 2244(b), intended to “modify” and 

“constrain[]” the role of “actual innocence” with respect to second or successive 

habeas applications. 133 S. Ct. at 1933-34 (emphasis omitted). Congress similarly 

has modified and constrained second or successive § 2255 motions. See 28 U.S.C. 

§ 2255(h). We are not persuaded that a reasonable jurist could debate whether 

McQuiggin allows Mr. Zaler to circumvent § 2255(h)’s restrictions simply by 

recasting his original untimely § 2255 claim as a claim of fraud upon the court. 

 A COA is denied and this matter is dismissed. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk 

Appellate Case: 14-1474 Document: 01019383880 Date Filed: 02/11/2015 Page: 4