F I L E D
United States Court of Appeals
Tenth Circuit
February 6, 2006
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 05-5065
v. (D.C. No. 97-CR-00171-C-1)
(Norther District of Oklahoma)
JEFFREY WILLIAMS,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, 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.
*
This order and judgment is not binding precedent, except under the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.
Jeffrey Dan Williams appeals the district court’s denial of his post-
conviction motion filed under Fed. R. Civ. P. 60(b). We vacate the order
for lack of subject matter jurisdiction, construe Mr. Williams’ notice of
appeal and appellate briefs as an implied application for authorization to
file another 28 U.S.C. § 2255 motion, and deny authorization.
Mr. Williams filed a post-conviction motion in the district court
arguing that his sentence was imposed in violation of his Sixth Amendment
right to have the jury determine the facts underlying the enhancement of his
sentence based on drug quantity, his role in the offense, and obstruction of
justice. He relied on the Booker line of cases. See United States v. Booker,
543 U.S. 220 (2005).
Mr. Williams has previously filed post-conviction motions
challenging the convictions under attack here. See United States v.
Williams, No. 01-5204, 44 Fed. Appx. 443 (10th Cir. Aug. 28, 2002)
(unpublished); United States v. Williams, No. 04- 5013 (10th Cir. Jul. 20,
2004) (unpublished).
The motion filed in the district court constituted an unauthorized
successive § 2255 motion. See, e.g. United States v. Torres, 282 F.3d
1241, 1246 (10th Cir. 2002) (“[T]o allow a petitioner to avoid the bar
against successive § 2255 motions by simply styling a petition under a
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different name would severely erode the procedural restraint imposed under
28 U.S.C. §§ 2244(b)(3) and 2255.”) (citing to Lopez v. Douglas, 141 F.3d
974, 975 (10th Cir.) (holding that a post-judgment Rule 60(b)(6) motion,
filed in a habeas proceeding, should be treated as “a second habeas petition
under the Antiterrorism and Effective Death Penalty Act ....”), cert. denied,
525 U.S. 1024 (1998)).
The Supreme Court decision in Gonzalez v. Crosby, 125 S.Ct. 2641,
2648, 2651 (2005) (holding that a Rule 60(b) motion filed in a § 2254 case
must be treated as a successive habeas petition if it asserts or reasserts a
substantive claim to set aside the petitioner’s state conviction, as opposed
to asserting a defect “in the integrity of the federal habeas proceedings”),
does not change this result.
First, the defendant’s Rule 60(b) motion seeks to raise a new claim,
the legality of his sentence under the Booker line of cases. Second, the
Gonzalez court specifically stated that its decision does not apply to § 2255
proceedings. “Federal prisoners generally seek postconviction relief under
§ 2255, which contains its own provision governing second or successive
applications. Although that portion of § 2255 is similar to, and refers to,
the statutory subsection applicable to second or successive § 2254
petitions, it is not identical. Accordingly, we limit our consideration to §
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2254 cases.” 125 S.Ct. at 2646 n. 3.
We will, however, construe Mr. Williams’ notice of appeal and
appellate briefs as a request for authorization to file another § 2255 motion.
See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997).
We have thoroughly reviewed the matter and conclude that Mr.
Williams has failed to make the prima facie showing required by § 2255 as
amended by the Antiterrorism and Effective Death Penalty Act. His
contentions are not based 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 fact finder
would have found [him] guilty of the offense” or on 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.
Booker is not retroactive to cases on collateral review. See United
States v. Bellamy, 411 F.3d 1182, 1184 (10th Cir. 2005) (holding that
“Booker does not apply retroactively to initial habeas petitions.”). Nor is it
grounds to file another § 2255 motion. See Bey v. United States, 399 F.3d
1266, 1269 (10th Cir. 2005) (“Pursuant to the Supreme Court’s holding in
[Tyler v. Cain, 533 U.S. 656 (2001)] we must conclude that under the
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Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-
132, 110 Stat. 1214, Booker may not be applied retroactively to second or
successive habeas petitions.”).
Accordingly, the district court order is VACATED, and the implied
application for authorization to file another § 2255 motion is DENIED.
Mr.
Williams’ motion to supplement his brief is DENIED.
Entered for the Court
PER CURIAM
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