FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 22, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-6065
(D.C. No. 5:04-CR-00179-R-3)
ERIC OROZCO, (W.D. Okla.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.
Eric Orozco, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) to appeal the district court’s decision construing his
Fed. R. Civ. P. 60(b) motion as an unauthorized second or successive 28 U.S.C.
§ 2255 motion and dismissing it for lack of jurisdiction. We deny a COA and
dismiss this matter.
Mr. Orozco was found guilty of one count of conspiracy to commit money
laundering. He was sentenced to 240 months’ imprisonment. We affirmed his
conviction and sentence on direct appeal. See United States v. Orozco, 240 F. App’x
*
This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
287, 289 (10th Cir. 2007). Mr. Orozco subsequently filed a § 2255 motion to vacate,
correct or set aside his sentence. The district court denied the motion, and we denied
his request for a COA. See United States v. Orozco, 301 F. App’x 783, 784
(10th Cir. 2008).
In September 2013, Mr. Orozco filed a motion seeking relief under
Fed. R. Civ. P. 60(b). The district court concluded that the 60(b) motion constituted
an attempt to file a second or successive § 2255 motion without prior authorization
and dismissed the motion for lack of jurisdiction. Mr. Orozco now seeks a COA to
appeal from that decision.
To obtain a COA, Mr. Orozco must show that “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). A prisoner may not file a second or successive
§ 2255 motion unless he first obtains an order from the circuit court authorizing the
district court to consider the motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h).
Absent such authorization, a district court lacks jurisdiction to address the merits of a
second or successive § 2255 motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir.
2008) (per curiam).
A 60(b) motion should be treated as a second or successive § 2255 motion
“if it in substance or effect asserts or reasserts a federal basis for relief from the
petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215
(10th Cir. 2006). A 60(b) motion may not be treated as a successive § 2255 motion if
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it “challenges a defect in the integrity of the federal habeas proceeding,” as long as
“such a challenge does not itself lead inextricably to a merits-based attack on the
disposition of a prior habeas petition.” Id. at 1216.
In his Rule 60(b) motion, Mr. Orozco argued that he was entitled to relief from
his conviction and sentence because of the Supreme Court’s decisions in United
States v. Santos, 553 U.S. 507 (2008), and Alleyne v. United States, 133 S. Ct. 2151
(2013). Applying the Spitznas analysis to Mr. Orozco’s Rule 60(b) motion, the
district court explained, “[h]ere, Defendant is clearly asserting a federal basis for
relief from his underlying conviction. Defendant argues that multiple Supreme Court
cases have rendered his conviction invalid in different ways. Defendant never
challenges a defect in the integrity of a federal habeas proceeding.” R., Vol. 1
at 115-16.
Reasonable jurists could not debate that the district court was correct in its
procedural ruling to treat Mr. Orozco’s 60(b) motion as an unauthorized second or
successive § 2255 motion and dismiss it for lack of jurisdiction. Accordingly, we
deny a COA and dismiss this matter. We grant Mr. Orozco’s motion for leave to
proceed on appeal without prepayment of costs or fees.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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