After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument. 

The Honorable John L. Kane, Senior District Judge, United States District **

Court for the District of Colorado, sitting by designation.

F I LED

United States Court of Appeals

Tenth Circuit

October 25, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LAVERN BERRYHILL,

Petitioner-Appellant,

v.

EDWARD EVANS,

Respondent-Appellee.

Nos. 04-6392 & 05-6038

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-95-700-T)

Submitted on the briefs:*

Raymond P. Moore, Federal Public Defender; Howard A. Pincus, Assistant

Federal Public Defender, Denver, Colorado for Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma; Diane L. Slayton,

Assistant Attorney General, Oklahoma City, Oklahoma for Appellee.

Before BRORBY and EBEL, Circuit Judges, and KANE, District Judge. **
He filed a previous petition in 1992, raising an appellate delay claim under 1

Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991). The district court did not

treat this Harris petition as a prior application for purposes of second or

successive principles. See generally Harris v. Champion, 48 F.3d 1127 (10th Cir.

1995) (Harris III) (setting out rules for treatment of Harris petitions under second

or successive principles). Mr. Berryhill’s other two prior petitions were

dismissed for failure to exhaust state remedies, and thus did not count as prior

applications for purpose of a second or successive analysis. See Moore v.

Schoeman, 288 F.3d 1231, 1236 (10th Cir. 2002).

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EBEL, Circuit Judge.

These appeals arise from Mr. Berryhill’s fourth federal habeas petition

seeking relief from his state court larceny convictions. In the ten years since the 1

district court entered its final habeas judgment in this case, the case has come

before us six times. We previously found it necessary to sanction Mr. Berryhill

for filing successive applications to file second or successive petitions, a step that

did not forestall his current filing. Case No. 04-6392 is Mr. Berryhill’s appeal

from the denial of his Rule 60(b) motion, brought in his 28 U.S.C. § 2254 habeas

case. Case No. 05-6038 is his appeal from the district court’s order denying him

in forma pauperis (IFP) status on appeal.
-3-

Factual and Procedural History

In 1990, Mr. Berryhill was convicted in Oklahoma state court of two counts

of larceny from a retailer, after prior conviction of two or more felonies. He was

sentenced to twenty years on each count, to be served consecutively. The

Oklahoma Court of Criminal Appeals (OCCA) affirmed his convictions. The

state district court denied his application for post-conviction relief, and the OCCA

affirmed this denial.

On May 8, 1995, Mr. Berryhill filed his most recent federal habeas petition

in the Western District of Oklahoma. The district court denied his petition on

July 9, 1996. He appealed. This court denied COA and dismissed his appeal. 

Berryhill v. Evans, No. 96-6264 (10th Cir. Feb. 11, 1997). On April 20, 1998,

June 18, 2002, and November 18, 2002, we denied his requests for authorization

to file second or successive § 2254 petitions. After Mr. Berryhill’s fourth request

for authorization we imposed the following sanction: “any further applications

filed by Mr. Berryhill for leave to file additional collateral attacks on his 1990

Oklahoma convictions for larceny will be deemed denied on the thirtieth day

unless this court otherwise orders.” 

Mr. Berryhill then attempted to file in this court a motion to recall our

mandate issued June 18, 2002. The clerk of court returned the motion to him,

unfiled. He refiled his motion in district court. In his motion to recall the

mandate, Mr. Berryhill alleged that a fraud had been committed on the federal
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habeas court. The district court denied the motion, reasoning that it had no

authority to direct the Tenth Circuit to recall its mandate, and that, in any event,

the habeas case in the district court had been closed for years and Mr. Berryhill

was not authorized to file additional pleadings in that case. 

Mr. Berryhill responded with (1) a motion for reconsideration of the denial,

and (2) a motion requesting the district court to construe his motion to recall the

mandate as a Rule 60(b) motion. The district court denied both motions. He then

filed his “Rule 60(b)-(3)-(6) Motion,” again raising allegations of fraud on the

state and federal courts. 

In both his motion to withdraw the mandate and his 60(b)-(3)-(6) motion,

Mr. Berryhill asserted that fraud occurred in regard to his original sentence, his

direct appeal, and the habeas proceedings. With regard to his direct appeal, he

asserted “fraud” based on the district court’s alleged lack of jurisdiction to

enhance his sentence under the habitual offender provisions. He also asserted that

on December 27, 1990, his court-appointed counsel, “or some unknown attorney,”

filed a “fraudulent appeal out of time” of Mr. Berryhill’s convictions with the

OCCA. The appeal was allegedly “fraudulent,” because no actual notice of

appeal had been filed to invest the OCCA with jurisdiction. Notwithstanding the

OCCA’s disposition of his appeal on the merits, Mr. Berryhill contended that his

entire state court direct appeal proceeding was the result of a massive conspiracy,

involving the state courts, the district attorney, the public defender’s office, and
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the Oklahoma state attorney general’s office, to deny him an appeal. This alleged

fraud was further compounded when his court-appointed attorney on direct appeal

allegedly provided him with ineffective assistance in connection with the issues

that were actually raised and decided in the appeal. 

As to the habeas proceedings, Mr. Berryhill asserted that he brought his

federal habeas petition as a “reaction to the conspiracy committed by the above

named Oklahoma state officials.” R., doc. 51, at 3. The Oklahoma Attorney

General “allowed this Petitioner to file the case at bar in federal court, when in

fact, he knew or should have known that appell[ate] jurisdiction had never been

invoked in this case at bar. [sic]” Id. Apparently, the overall aim of the alleged

conspiracy was to cause Mr. Berryhill to use up his single chance to file a direct

appeal in state court and a § 2254 habeas petition in federal court, without raising

the issues he wished to raise. 

His allegations of fraud are thus aptly summarized in the following

language from his 60(b)-(3)-(6) motion:

The Okl[ahoma] Attorney General and this Petitioner’s appell[ate]

attorney conspired together and came into this federal court . . . and

lied to this court about the legality of this Petitioner’s sentences and

the correctness of Petitioner’s state appell[ate] procedures, when they

both knew such to be false and a fraud upon this court.

R., doc. 57, at 2. In other words, the claim raised by Mr. Berryhill in his Rule

60(b) motion was that the rulings in his conviction and direct appeal were void
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due to fraud and that the witnesses in his habeas proceedings committed fraud by

not admitting that the previous rulings were void.

In his motions, Mr. Berryhill contended that, in light of the fraud

committed on both the state and federal courts, the federal court should withdraw

its mandate; the previous state court appeal should be declared void; and he

should be granted leave to file an appeal out of time with the OCCA. In other

words, he should be permitted to start the entire process of reviewing his

convictions all over again, beginning with a fresh, direct appeal in state court.

The district court, after determining that the Rule 60(b) motion sought

relief from the 1990 verdict and sentences imposed in Mr. Berryhill’s state court

proceeding, rather than relief from judgment available under Rule 60(b), denied

the motion. Mr. Berryhill appealed the denial, and the district court denied COA.

Analysis

Proceeding in accordance with the procedures outlined in Spitznas v.

Boone, No. 05-6236, ___F.3d___, 2006 WL 2789868 (10th Cir. Sept. 29, 2006),

we note, first, that this is an appeal from the denial of a Rule 60(b) motion. If,

however, that 60(b) motion was in fact a second or successive petition, the district

court lacked jurisdiction to deny it on the merits. See id. at *1; United States v.

Gallegos, 142 F.3d 1211, 1212 (10th Cir. 1998) (per curiam). 

Mr. Berryhill’s Rule 60(b) motion charges fraud on the court in regard to

the rulings pertaining to his sentencing, his direct appeal, and the denial of his
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habeas petition. In cases where the allegation of fraud attacks only “some defect

in the integrity of the federal habeas proceedings,” Gonzalez v. Crosby, 125 S. Ct.

2641, 2648, without attacking “the substance of the federal court’s resolution of a

claim on the merits,” the motion will be considered a true 60(b) motion that can

be decided by the district court without prior authorization under § 2244(b). 

Mr. Berryhill’s allegations of fraud clearly do not fall into this category. Instead,

his allegations seek to assert or reassert habeas claims (alleged fraud committed

regarding his original sentence and direct appeal), or are inextricably intertwined

with a claim of fraud committed on the state courts (and perpetuated by an alleged

continuing fraud committed in the habeas proceeding to cover up the fraud on the

state court), resulting in a merits-based attack on his state convictions. 

His allegation that the state hid from the habeas court the fact that the

OCCA lacked jurisdiction to adjudicate his direct appeal, for example, “is

effectively indistinguishable from alleging that [he] is, under the substantive

provisions of the statutes, entitled to habeas relief.” Gonzalez, 125 S. Ct. at 2648;

see also Spitnzas, 2006 WL 2789868, at *2. It necessarily attacks the state court

judgment, seeking to have it declared void, rather than raising an independent

“defect in the integrity of the federal habeas proceedings.” Gonzalez, 125 S. Ct.

at 2648; see also Spitznas, 2006 WL 2789868, at *1. 

The same is true for his claim that his state-appointed attorney

“fraudulently” provided him with ineffective assistance on direct appeal, and his
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claim that the state court “fraudulently” lacked jurisdiction to enhance his

sentence under the habitual offender provisions. If it were a sufficient showing of

fraud to re-allege one’s substantive arguments in the guise of fraud on the habeas

court based on, for example, the state’s failure to argue or demonstrate the legal

weaknesses of its own position, no habeas judgment would be safe from a second

or successive attack. See id. at *2, n.4 (cautioning litigants against re-casting

substantive habeas arguments in the guise of “fraud on the court”). 

Mr. Berryhill also claims that the state conspired to cause him to use up his

first habeas petition by failing to disclose jurisdictional defects in the state court

proceedings. Such an assertion in this case is entirely meritless, because the only

factual basis for it lies in the reformulation of Mr. Berryhill’s habeas claims of

fraud on the state court in the guise of fraud on the habeas court. 

In sum, Mr. Berryhill has filed a second or successive habeas petition and

not a true 60(b) motion. We therefore vacate the district court’s disposition on

the merits of his 60(b) motion.

Mr. Berryhill has filed an application for COA in this case, which we

construe as an application for authorization to file a successive petition. In his

application for COA, he states “I had no money to hire an attorney so it took me

ten years of study in [a] prison law library to determine that my sentences are

Void and the trial judge was without jurisdiction to sentence me to said excessive

sentences.” This allegation, and the other statements in his application for COA,
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do not establish “a prima facie showing that the application satisfies the

requirements” for a second or successive petition. 28 U.S.C. § 2244(b)(3)(C). 

We VACATE the district court’s order denying Mr. Berryhill’s 60(b)

motion, because the court lacked subject matter jurisdiction to rule on the merits

of that motion. We DENY him authorization to file a second or successive

§ 2254 habeas petition. Mr. Berryhill’s request to proceed on appeal in forma

pauperis is GRANTED. All other pending motions are DENIED.