F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 15 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSEPH MACASTLE JACKSON,
Petitioner-Appellant,
v. No. 98-6023
(D.C. No. CIV-96-637-C)
RON CHAMPION, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner appeals the district court’s denial of his motion for resettlement,
vacation or modification of the district court’s order denying his 28 U.S.C. § 2254
habeas petition. Petitioner filed his first habeas petition on October 28, 1988, and
it was denied on the merits. His second petition, filed January 10, 1991, was
dismissed as abusive, and this court affirmed. Petitioner filed his third petition
for habeas relief on March 27, 1996, the district court denied the petition on
September 27, 1996, and this court dismissed the appeal. On December 17, 1997,
petitioner filed a motion for relief from the district court’s denial of his habeas
petition pursuant to Fed. R. Civ. P. 60(b). The district court denied the motion,
and petitioner appeals.
We treat petitioner’s Rule 60(b) motion as his fourth habeas petition under
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), because
“Rule 60(b) cannot be used to circumvent restraints on successive habeas
petitions.” Lopez v. Douglas , 141 F.3d 974, 975 (10th Cir. 1998) (quotation
omitted). Petitioner filed the Rule 60(b) motion after the effective date of
AEDPA. Consequently, he was required to obtain authorization from this court
before filing a successive habeas petition in the district court. 1
See Lopez ,
1
We do not decide whether 28 U.S.C. § 2244(b)(1) required dismissal of this
habeas petition for presenting claims already presented in prior applications. As
in previous filings and as the district court recognized, it is difficult to decipher
what petitioner is arguing. Thus, it is difficult to determine whether petitioner
(continued...)
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141 F.3d at 975; 28 U.S.C. § 2244(b)(3). We must, therefore, vacate the district
court’s order because it did not have jurisdiction to decide the unauthorized
petition. See Lopez , 141 F.3d at 975-76.
We construe the notice of appeal and appellate brief in this case as “an
implied application under 28 U.S.C. § 2244(b)(3)(A) for leave to file a [fourth]
habeas petition in the district court.” Id. at 976. Petitioner’s implied application
does not meet the requirements § 2244(b)(2): he does not allege or show “that the
claim relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable;” nor
does he allege or show that “the factual predicate for the claim could not have
been discovered previously through the exercise of due diligence.”
Accordingly, we VACATE the district court’s order of September 27, 1996,
disposing of petitioner’s unauthorized fourth petition for habeas relief, and we
1
(...continued)
has presented these claims in a prior application.
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DENY the implied application for leave to file a fourth petition in the district
court. The mandate shall issue forthwith.
Entered for the Court
Robert H. Henry
Circuit Judge
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