UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MICHAEL DEWAYNE BELL, 

 Defendant - Appellant. 

No. 14-5116 

(D.C. Nos. 4:10-CV-00138-GKF-TLW & 

4:06-CR-00140-GKF-1) 

(N.D. Okla.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

 

 Michael Dewayne Bell, a federal prisoner proceeding pro se, seeks to appeal 

the district court’s dismissal of his Fed. R. Civ. P. 60(d)(3) motion as an 

unauthorized second or successive 28 U.S.C. § 2255 motion. See 28 U.S.C. 

§ 2255(h) (placing restrictions on second or successive § 2255 motions and requiring 

circuit court authorization to proceed in district court). We deny a certificate of 

appealability (COA) and dismiss this proceeding. 

 Bell was convicted of aggravated bank robbery and carrying a firearm during 

and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2113(a), (d), 

 

* This order is not binding precedent except under the doctrines of law of the 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

January 21, 2015

Elisabeth A. Shumaker 

Clerk of Court

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924(c)(1)(A)(ii). We affirmed his conviction and sentence on appeal, and the United 

States Supreme Court denied his petition for certiorari. He filed a pro se § 2255 

motion to vacate, set aside, or correct his sentence, alleging that his appellate counsel 

provided ineffective assistance. The district court denied relief, and this court denied 

his request for a COA. Bell next filed a motion under Fed. R. Civ. P. 60(b) alleging 

that the district court failed to address five issues he had raised in his § 2255 motion. 

The district court agreed that it had not considered two of his issues, and it proceeded 

to consider and deny those claims on their merits. It deemed the remainder of the 

motion to be an unauthorized second or successive § 2255 motion, which it dismissed 

for lack of jurisdiction. Bell appealed, and we denied his request for a COA. He 

then filed a motion in the district court seeking leave to amend his original § 2255 

motion under Fed. R. Civ. P. 15. The district court deemed the motion to be yet 

another unauthorized successive § 2255 motion and dismissed it for lack of 

jurisdiction. Bell appealed, and we again denied his request for a COA. 

 Most recently, Bell filed a motion in the district court to challenge his 

conviction alleging “fraud upon the court” and citing Rule 60(d)(3). He argued fraud 

on the grounds that (1) the description of the weapon in the original indictment was 

changed in the superseding indictment, and (2) the prosecuting attorney knew she 

could not prove the elements of the third count of the indictment, which prohibits a 

convicted felon of possessing a firearm, but pursued this charge to prejudice the jury 

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concerning Bell’s past criminal history. The district court deemed the motion an 

unauthorized successive § 2255 motion and dismissed it for lack of jurisdiction. 

 Mr. Bell now requests a COA from this court. See United States v. Harper, 

545 F.3d 1230, 1233 (10th Cir. 2008) (“[T]he district court’s dismissal of an 

unauthorized § 2255 motion is a ‘final order in a proceeding under section 2255’ 

such that [28 U.S.C.] § 2253 requires petitioner to obtain a COA before he or she 

may appeal.”). To obtain a COA, Mr. Bell must show both “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 

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

484 (2000). It matters not that Bell’s current motion is based on Rule 60(d)(3), 

because this court has squarely held that a motion invoking the district court’s 

inherent power to set aside a judgment obtained through fraud on the court under 

Rule 60(d)(3) is subject to the certification requirements of § 2255(h). See United

States v. Baker, 718 F.3d 1204, 1207 (10th Cir. 2013) (“[W]e apply the same 

analysis, even when the motion asserts a fraud-on-the-court claim”). 

Bell’s motion is subject to the authorization requirements of 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. See Gonzalez v. Crosby, 545 U.S. 

524, 531-32, 538 (2005); United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 

2006). But authorization under § 2255(h) is not required “when a Rule 60(b) motion 

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attacks, not the substance of the federal court’s resolution of a claim on the merits, 

but some defect in the integrity of the federal habeas proceedings.” Gonzalez, 

545 U.S. at 532. 

 It is beyond dispute that Bell’s allegations of prosecutorial misconduct or 

fraud attacked the integrity of the underlying trial, and not some defect in the 

integrity of the § 2255 proceeding itself. No jurist of reason could reasonably debate 

the correctness of the district court’s determination that, without authorization under 

§ 2255(h), it had no jurisdiction to consider Bell’s motion. We deny a COA and 

dismiss this proceeding. We grant Bell’s motion to proceed in forma pauperis on 

appeal. 

 Entered for the Court 

 ELISABETH A. SHUMAKER, Clerk 

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