FILED

United States Court of Appeals

Tenth Circuit

June 17, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

FELIPE BEDOLLA-IZAZAGA,

Movant.

No. 10-3094

ORDER

Before LUCERO, HARTZ, and O’BRIEN, Circuit Judges.

Movant Felipe Bedolla-Izazaga, a federal prisoner proceeding pro se, has

filed a motion for remand challenging the transfer to this court of a Federal Rule

of Civil Procedure 60(b) motion he filed in the district court seeking to reopen his

28 U.S.C. § 2255 motion. Alternatively, he seeks authorization to file a second or

successive § 2255 motion to challenge his convictions. We deny both motions.

Mr. Bedolla-Izazaga was convicted in 2006 of eight drug-related

convictions. He was sentenced to 360 months’ imprisonment. He did not file a

direct appeal. In August 2006, Mr. Bedolla-Izazaga filed his first § 2255 motion

challenging his convictions and sentence, which was denied by the district court. 

See United States v. Bedolla-Izazaga, Nos. 04-40001-02-SAC, 06-3228-SAC,

2007 WL 1875775 (D. Kan. June 28, 2007) (unpublished disposition). On

March 18, 2010, Mr. Bedolla-Izazaga filed a Rule 60(b) motion seeking to reopen

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his first § 2255 motion. Because that motion asserted claims challenging his

conviction, the district court transferred the motion to this court to enable

Mr. Bedolla-Izazaga to seek the required authorization. See United States v.

Bedolla-Izazaga, Nos. 04-40001-02-SAC, 06-3228-SAC, 2010 WL 1531154

(D. Kan. Apr. 15, 2010) (unpublished disposition); see also In re Cline, 531 F.3d

1249, 1252 (10th Cir. 2008) (permitting district courts to either dismiss an

unauthorized second or successive motion for lack of jurisdiction or transfer it to

the circuit court for authorization).

Motion for Remand. Mr. Bedolla-Izazaga requests this court to remand his

Rule 60(b) motion to the district court, arguing the district court should not have

construed his claims as habeas claims, but should have invoked its inherent

powers to rule on his Rule 60(b) motion. Congress has placed limits on second or

successive § 2255 motions, allowing them to be filed only with a circuit court’s

prior authorization. See 28 U.S.C. § 2255(h). “A district court does not have

jurisdiction to address the merits of a second or successive § 2255 . . . claim until

this court has granted the required authorization.” In re Cline, 531 F.3d at 1251. 

In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court held that a claim

nominally filed under Rule 60(b) in a habeas proceeding is, in substance, a

successive habeas claim, requiring prior circuit authorization, if it asserts or

reasserts a merits-based challenge to the validity of the conviction or sentence. 

Id. at 531-32. In his Rule 60(b) motion, Mr. Bedolla-Izazaga asked the district

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It does not appear, however, that a transfer was in the interest of justice 1

under 28 U.S.C. § 1631. See Cline, 531 F.3d at 1252 (“Where there is no risk that

a meritorious successive claim will be lost absent a § 1631 transfer, a district

court does not abuse its discretion if it concludes it is not in the interest of justice

to transfer the matter to this court for authorization.”). 

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court to reopen his § 2255 motion to present claims that his sentence was illegal

in light of Blakely v. Washington, 542 U.S. 296 (2004) and United States v.

Booker, 543 U.S. 220 (2005), and that he received ineffective assistance of

counsel at trial and on appeal, because his counsel failed to file a direct appeal. 

We have reviewed Mr. Bedolla-Izazaga’s Rule 60(b) motion and conclude that all

of his proposed claims are clearly merits-based challenges to the validity of his

convictions and sentence. Thus, the district court did not err in concluding that

his proposed claims constituted successive habeas claims which require

authorization under § 2255(h), and we deny the motion for remand.1

Motion for Authorization. Alternatively, Mr. Bedolla-Izazaga seeks

authorization to present these proposed claims in a successive § 2255 motion.

To obtain authorization to file a second or successive § 2255 motion, a federal

prisoner must demonstrate that his proposed claims either depend on “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 [him] guilty of the offense,” § 2255(h)(1),

or rely upon “a new rule of constitutional law, made retroactive to cases on

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collateral review by the Supreme Court, that was previously unavailable,”

§ 2255(h)(2). 

Mr. Bedolla-Izazaga wishes to present a claim that his sentence was

unconstitutional because the government had produced no evidence that the

methamphetamine he distributed was D-methamphetamine, citing United States v.

Glover, 97 F.3d 1345, 1347 (10th Cir. 1996) (holding government bears this

burden), and a claim that his trial counsel was ineffective for failing to raise this

Glover issue. 

Mr. Bedolla-Izazaga bases his motion for authorization on the

new-rule-of-law prong of § 2255(h)(2), arguing that he only recently learned

about the Glover case. Learning about a decision that was available at the time of

trial and when the defendant filed his first § 2255 motion does not, however,

constitute new law. Moreover, a decision from this circuit court does not meet

the § 2255(h)(2) requirement; a “new rule becomes retroactive, not by the

decisions of the lower court or by the combined action of the Supreme Court and

the lower courts, but simply by the action of the Supreme Court.” Tyler v. Cain,

533 U.S. 656, 663 (2001).

Accordingly, Mr. Bedolla-Izazaga’s motion for remand is DENIED. 

Because his motion for authorization does not meet the requirements for

authorization under § 2255(h), that motion is also DENIED. This denial of 

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authorization is not appealable and “shall not be the subject of a petition for

rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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