October 8, 2013
UNITED STATES OF AMERICA, Plaintiff - Appellee,
LARRY RAIFSNIDER, Defendant-Appellant.
D. Kansas (D.C. Nos. 6:04-CR-10255-MLB-1 and 6:05-CR-10052-MLB-1)
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
ORDER AND JUDGMENT [*]
MICHAEL R. MURPHY CIRCUIT JUDGE
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases are therefore ordered submitted without oral argument.
In 2005, Larry Raifsnider pleaded guilty to numerous federal crimes, including kidnapping and possessing a firearm during a crime of violence. His attempt to obtain post-conviction relief pursuant to 28 U.S.C. § 2255 was unavailing. United States v. Raifsnider, 252 F.App'x 866 (10th Cir. 2007). On January 22, 2013, Raifsnider filed the current pro se Motion for Order to Nullify Guilty Plea. To avoid having his motion treated as a second or successive § 2255 motion, Raifsnider contended he was seeking relief from his convictions pursuant to Rule 60(d)(1) of the Federal Rules of Civil Procedure.
Consistent with Raifsnider's characterization of his motion as seeking relief from a criminal judgment, the district court concluded he could not proceed pursuant to Rule 60(d)(1) because the Federal Rules of Civil Procedure apply only in civil proceedings. Accordingly, the court denied the motion. On appeal, Raifsnider argues, inter alia, that the district court erred in concluding Rule 60 is only applicable in civil proceedings. The district court's conclusion, however, is undeniably correct. United States v. McCalister, 601 F.3d 1086, 1087-88 (10th Cir. 2010).
After review of the appellate filings, the district court's order, and the entire record, we affirm the denial of Raifsnider's motion for substantially the reasons stated by the district court and conclude the appeal is wholly frivolous. Raifsnider's motion to proceed in forma pauperis on appeal is denied and the fees are now due. See 28 U.S.C. § 1915(b).