FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2016
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-8121
(D.C. Nos. 1:15-CV-00173-SWS &
LAUREN ELIZABETH SCOTT, 1:12-CR-00058-SWS-2)
(D. Wyo.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before TYMKOVICH, Chief Judge, MATHESON and McHUGH, Circuit Judges.
Defendant Lauren Elizabeth Scott, a federal prisoner proceeding pro se, seeks
to appeal the district court’s dismissal of what it construed to be an unauthorized
second or successive motion under 28 U.S.C. § 2255. See In re Cline, 531 F.3d
1249, 1252 (10th Cir. 2008) (per curiam). Ms. Scott contends that the district court
erred in construing her “Petition to Vacate Judgement for Fraud on the Court (Fed. R.
Civ. P. 60(d)(3))” as a § 2255 motion and that it further erred in concluding that it
was second or successive. We deny a certificate of appealability (COA) and dismiss
the matter.
*
This order is not binding precedent except under the doctrines of law of the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.
I.
Ms. Scott pled guilty to fraud and money-laundering charges arising from a
scheme in which she and others took money from investors for “wind farm” projects
in Wyoming that did not actually exist. Following an aborted appeal (she voluntarily
dismissed her appeal before any briefs were filed), she filed a § 2255 motion. The
district court denied relief and this court denied a COA, United States v. Scott,
No. 15-8030, Order Denying COA (Oct. 20, 2015). Shortly before we issued our
order denying COA, Ms. Scott filed what she contended was an independent action
under Fed. R. Civ. P. 60(b)(3) for fraud on the court. She contended that the
government perpetrated a fraud on the court by (1) keeping the grand jury empaneled
more than 18 months without a court order, see Fed. R. Crim. P. 6(g); and
(2) fabricating evidence and producing perjured testimony at two pretrial hearings.
She argued that her conviction and sentence should therefore be set aside.
The district court concluded that Ms. Scott’s petition was in substance a
§ 2255 motion because it attacked her conviction and sentence. It further concluded
that this was her second § 2255 motion and that she had not obtained circuit
authorization before filing it. The court therefore dismissed the matter for lack of
jurisdiction.
II.
To appeal the district court’s dismissal, Ms. Scott must first obtain a COA
under 28 U.S.C. § 2253(c)(1)(B). See United States v. Baker, 718 F.3d 1204, 1206
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(10th Cir. 2013) (requiring COA to appeal dismissal of filing that district court
construed as unauthorized second or successive § 2255 motion). Because the district
court’s dismissal rests on procedural grounds, Ms. Scott must show both “that jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and 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).
We conclude that reasonable jurists could not debate the propriety of
construing Ms. Scott’s purported Rule 60(b) petition as a § 2255 motion. See Baker,
718 F.3d at 1206-07 (holding that where fraud-on-the-court allegations related to
underlying criminal proceedings and not to integrity of § 2255 proceedings, district
court properly construed Rule 60 motion as § 2255 motion). We further conclude
that reasonable jurists could not debate the propriety of construing the § 2255 motion
as a second or successive motion.
Ms. Scott contends the motion is not second or successive because the district
court entered an amended judgment on November 16, 2015, after she filed her first
§ 2255 motion. See Magwood v. Patterson, 561 U.S. 320, 323-24 (2010). But the
record shows that the district court has never amended the judgment as to Ms. Scott.
The order it entered on November 16, 2015, merely identified the successor in
interest of one of the payees to whom Ms. Scott’s co-defendant, Robert Arthur Reed,
owes restitution. That order had no effect on Ms. Scott’s judgment. So the district
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court properly construed her Rule 60(d)(3) motion as a second or successive § 2255
motion. Because Ms. Scott did not obtain our authorization before filing the motion,
see 28 U.S.C. §§ 2244(b)(3), 2255(h), the district court properly dismissed it for lack
of jurisdiction, see In re Cline, 531 F.3d at 1252.
We therefore deny a COA and dismiss this matter. We grant Ms. Scott’s
motion to proceed on appeal without the prepayment of fees or costs.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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