F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 21 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3210
(D. Kan.)
PATRICK E. WASHINGTON, (D.Ct. No. 91-CR-20022-01-GTV)
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Patrick E. Washington, a federal prisoner appearing pro se,
*
This order and judgment is not binding precedent except under the doctrines of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.
appeals the district court’s decision dismissing his motion filed pursuant to
Federal Rule of Civil Procedure 60(b)(6). We construe Mr. Washington’s appeal
as an implied application to file a second or successive motion under 28 U.S.C.
§ 2255, and deny Mr. Washington leave to file such a motion.
The procedural background in this case warrants a short discussion. Mr.
Washington was convicted on three counts of distribution of cocaine base, and
unsuccessfully appealed his conviction and sentence to this court. See United
States v. Washington, 11 F.3d 1510, 1511, 1518 (10th Cir. 1993), cert denied, 511
U.S. 1020 (1994). Following his direct appeal, Mr. Washington filed a motion
under the Freedom of Information Act (FOIA) with the district court, and later
filed two supplemental documents which the district court construed as a motion
setting forth claims under 28 U.S.C. § 2255. 1 See Washington, 1996 WL 570198,
**1-2. The district court rejected both Mr. Washington’s FOIA and § 2255
motions in one order, discussing the merits of each motion separately. Id. at **1-
6. No appeal was taken.
1
Because the record does not contain the supplemental documents filed by Mr.
Washington, we rely on the district court’s identification of the issues raised therein and
its cogent and thorough discussion of the merits of those issues. See Washington v.
United States, 1996 WL 570198, **1-6 (D. Kan. Sept. 27, 1996).
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Thereafter, Mr. Washington filed two unsuccessful § 2255 motions, one pro
se and one by counsel. The district court dismissed the § 2255 motion filed by
counsel as successive, finding Mr. Washington failed to obtain prior authorization
from this court for filing. The district court nevertheless transferred the § 2255
motion filed pro se to this court, construing it as an implied application for
authorization to file a successive § 2255 motion, and we denied the implied
application. Shortly thereafter, Mr. Washington filed the “Motion for Relief from
Judgment” pursuant to Rule 60(b)(6), at issue in this case. The district court
denied Mr. Washington’s Rule 60(b)(6) motion, determining Mr. Washington did
not provide any reason which justified relief from the district court’s prior
judgment on his first § 2255 motion. The district court also denied four
subsequent motions filed by Mr. Washington which the district court construed as
motions to reconsider its denial of Mr. Washington’s Rule 60(b)(6) motion.
On appeal, Mr. Washington contends the district court abused its discretion
in denying his Rule 60(b)(6) motion. In support of this contention, Mr.
Washington asserts the district court improperly construed his FOIA request as a
§ 2255 motion. Mr. Washington asserts the district court made this error because
Mr. Washington filed the FOIA request and supplemental documents pro se,
thereby causing confusion on his intent to file only a FOIA request and not a §
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2255 motion. In addition, Mr. Washington contends his pro se status and
ineffective assistance of his post-conviction counsel warrants the filing of a
successive § 2255 motion. Specifically, Mr. Washington claims: 1) two different
attorneys acted ineffectively by failing to file § 2255 motions, causing Mr.
Washington to file his own pro se pleadings initiating the first and second § 2255
motions; and 2) one of those attorneys continued to act ineffectively by eventually
filing a third, unsatisfactory § 2255 motion.
We have held a Rule 60(b)(6) motion cannot be used to circumvent
restrictions imposed on successive motions. See Lopez v. Douglas, 141 F.3d 974,
975 (10th Cir.) (per curiam), cert. denied, 525 U.S. 1024 (1998). Thus, we treat a
post-judgment Rule 60(b)(6) motion filed in a habeas proceeding as a second or
successive motion under the Antiterrorism and Effective Death Penalty Act of
1996. See id. In order to file a second or successive § 2255 motion in the district
court, the movant must obtain prior authorization from this court. See 28 U.S.C.
§§ 2244(b)(3)(A), 2255. Because Mr. Washington failed to obtain our
authorization, the district court lacked jurisdiction to decide his Rule 60(b)
motion and motions to reconsider, and therefore, we must vacate the district
court’s orders denying those motions. See Lopez, 141 F.3d at 975-76.
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Having made this determination, we next construe Mr. Washington’s notice
of appeal and brief on appeal together as an implied application for leave to file
another § 2255 motion in the district court. See id. at 976. In order to obtain
authorization from this court to file a second § 2255 motion in the district court,
Mr. Washington must make the requisite showing under 28 U.S.C. § 2255.
Specifically, he must show: “(1) 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; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255. In short, Mr. Washington must
demonstrate either: 1) previously undiscoverable facts sufficient to establish he
would not have been found guilty of the offense; or 2) reliance on a new,
retroactive rule of constitutional law.
Following a review of Mr. Washington’s implied application, we determine
his application does not meet the requirements under § 2255. Specifically, Mr.
Washington does not allege nor show a previously undiscoverable factual
predicate existed sufficient to establish that no reasonable fact finder would have
found him guilty of the underlying offense, or that his claims rely on a new,
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retroactive rule of constitutional law. 28 U.S.C. § 2255. Clearly, Mr.
Washington’s contention that the district court improperly construed his FOIA
request as a § 2255 motion is insufficient to meet this criteria. First, the record
shows the district court treated and rejected his FOIA request and initial § 2255
motion as separate matters rather than construing them together. See Washington,
1996 WL 570198, at **1-6. Second, Mr. Washington’s supplemental pleadings
raised issues warranting § 2255 motion treatment. Id. Mr. Washington’s intent to
raise the issues therein for relief under § 2255 is evidenced by the fact Mr.
Washington raised two of the same claims in his subsequent § 2255 motion.
Finally, Mr. Washington did not appeal either the district court’s determination to
construe his supplemental pleadings as a § 2255 motion, or the district court’s
decision on the merits of the issues raised therein.
We also reject Mr. Washington’s argument he should be able to file a
successive § 2255 motion based on: 1) his pro se status in preparing his first and
second § 2255 motions; 2) alleged ineffective assistance of counsel in failing to
prepare his first and second § 2255 motions; and 3) alleged ineffective assistance
of counsel in preparing his third § 2255 motion. First, none of these contentions
meets the requirements necessary for obtaining approval for filing a second or
successive § 2255 motion. Moreover, in considering second or successive
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motions, we have held pro se status does not justify reconsideration of the choices
made in prior habeas matters. See Tapia v. Lemaster, 172 F.3d 1193, 1196 (10th
Cir.), cert. denied, 528 U.S. 880 (1999). Similarly, because no constitutional
right to counsel exists in collateral attacks on a conviction, ineffective assistance
of counsel during collateral post-conviction proceedings is not grounds for, nor an
excuse to file, a successive or abusive habeas writ. See Bloomer v. United States,
162 F.3d 187, 191 n.1 (2d Cir. 1998); Callins v. Johnson, 89 F.3d 210, 212-13
(5th Cir.), cert. denied, 519 U.S. 1017 (1996); Washington v. Delo, 51 F.3d 756,
760 (8th Cir.), cert. denied, 516 U.S. 876 (1995).
For these reasons, we conclude Mr. Washington fails to make the prima
facie showing necessary to satisfy the requirements under the Antiterrorism and
Effective Death Penalty Act for a second or successive habeas application.
Accordingly, we VACATE the district court’s orders denying Mr. Washington’s
Rule 60(b)(6) motion and motions to reconsider, and deny Mr. Washington’s
implied application for leave to file a second or successive § 2255 motion in the
district court. We further deny Mr. Washington’s motion to proceed in forma
pauperis. Because this appeal involves an implied application for leave to file a
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successive motion, no certificate of appealability is required and therefore, Mr.
Washington’s request for a certificate of appealability is denied.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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