D.C. Nos. 6:06-CR-10129-JTM-1 & 6:09-CV-01130-JTM, D. Kan.
Before KELLY, EBEL, and LUCERO, Circuit Judges.
At the direction of the panel, the Order Denying Certificate of Appealability issued in this matter originally on May 6, 2013, shall be published. The Clerk is directed to reissue the attached decision as one for publication forthwith.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
James E. Baker, a federal prisoner proceeding pro se, seeks to appeal the district court's dismissal for lack of jurisdiction of his motion for relief pursuant to Fed.R.Civ.P. 60(d)(3) and Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), overruled on other grounds by Standard Oil Co. of Cal. v. United States, 429 U.S. 17 (1976). We deny a certificate of appealability (COA) and dismiss this proceeding.
Baker was convicted by a jury in 2006 of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). The jury found him not guilty on a second count of possession of stolen ammunition, in violation of § 922(j). Baker was sentenced to 235 months' imprisonment. After an unsuccessful appeal to this court, see United States v. Baker, 508 F.3d 1321 (10th Cir. 2007), denial of rehearing en banc, see United States v. Baker, 523 F.3d 1141 (10th Cir. 2008), and denial of his petition for certiorari, see Baker v. United States, 555 U.S. 853 (2008), Baker filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The district court denied relief and we denied a COA. Baker subsequently filed two motions for authorization to file a second-or-successive § 2255 motion with this court, both of which were denied. The district court also dismissed for lack of jurisdiction Baker's "Motion to Reconsider and Vacate Enhancement" as an unauthorized second-or-successive § 2255 motion, and we denied a COA.
Baker's latest attempt to challenge his conviction was a motion filed in the district court alleging "fraud upon the court" and citing Rule 60(d)(3). He argued that the prosecutor knowingly allowed unlawfully seized evidence to be presented to the district court in his criminal trial and also knew or should have known that testimony by a police witness regarding the date and time of his arrest was false. The district court concluded that Baker's motion asserted a new ground for relief from his conviction, rather than attacking a defect in the integrity of his previously conducted § 2255 proceeding. Therefore, because his motion sought § 2255 relief in substance, if not in form, and Baker had not obtained authorization from this court to file a second-or-successive § 2255 motion, the district court dismissed his motion for lack of jurisdiction.
Standard of Review
Baker must obtain a COA to pursue an appeal. See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court's ruling rests on procedural grounds, he 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 deny a COA. Reasonable jurists would not find debatable the district court's ruling that it lacked jurisdiction over Baker's motion because it was an unauthorized second-or-successive § 2255 motion.
A prisoner must obtain this court's authorization to file a second-or-successive § 2255 motion. See 28 U.S.C. §§ 2255(h); 2244(b)(3). A prisoner's post-judgment motion is treated like a second-or-successive § 2255 motion—and is therefore subject to the authorization requirements of § 2255(h)—if it asserts or reasserts claims of error in the prisoner's conviction. United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). In contrast, if the motion "seeks to correct an error in the previously conducted [§ 2255] proceeding itself, " it is not characterized as a successive motion. Id. "[I]f the prisoner's pleading must be treated as a second or successive § 2255 motion, the district court does not even have jurisdiction to deny the relief sought in the pleading." Id. at 1148.
Baker does not contend that his motion seeks to correct an error in his § 2255 proceeding. Rather, his fraud-on-the-court allegations relate solely to his underlying criminal proceeding. Thus, under Nelson, the district court did not err in dismissing his motion as an unauthorized second-or-successive § 2255 motion. But Baker asserts that a motion invoking the district court's inherent power to set aside a judgment obtained through fraud on the court is not subject to the certification requirements in § 2255(h) if it is brought under Fed.R.Civ.P. 60(d)(3) and Hazel-Atlas. We disagree.
In Hazel-Atlas, the Supreme Court held that a federal court possesses inherent power to vacate a judgment obtained by fraud on the court. See 322 U.S. at 248-49. The Court thus "recognized what is now referred to as the 'fraud on the court' doctrine." Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1266 (10th Cir. 1995). Rule 60(b) sets forth grounds upon which a party may move the district court to grant relief from a final judgment. And Rule 60(d)(3) confirms that Rule 60 "does not limit a court's power to . . . set aside a judgment for fraud on the court." Before December 1, 2007, when the rule was amended to add subsection (d)(3), substantively identical savings-clause language regarding fraud-on-the-court claims was included in Rule 60(b). See Fed. R. Civ. P. 60(b) (eff. Aug. 1, 1987) (providing that "[t]his rule does not limit the power of a court to . . . set aside a judgment for fraud upon the court"). The Supreme Court has noted that the inherent power to set aside a judgment due to fraud on the court, as recognized in Hazel-Atlas, was reflected and confirmed in former Rule 60(b). See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 233-34 (1995) (stating that Rule 60(b) "reflects and confirms the court's own inherent and discretionary power, 'firmly established in English practice long before the foundation of our Republic, ' to set aside a judgment whose enforcement would work inequity" (quoting Hazel-Atlas, 322 U.S. at 244)). A fraud-on-the-court claim may be brought either as an independent action preserved by the savings clause in Rule 60(d)(3), or as a claim under Rule 60(b)(3), which provides for relief from judgment based on "fraud ...