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    Card v. United States, 10th Cir. (2007)

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    This order summarizes a district court case involving Daniel Card's appeal of the denial of his Rule 60(b)(6) motion seeking relief from a previous judgment. The appellate court determined that Card's motion should have been treated as a successive 28 U.S.C. § 2255 motion rather than a true Rule 60(b) motion, as it asserted a basis for relief from his underlying conviction. As such, the district court lacked jurisdiction to rule on the motion and should have transferred it to the appellate court for authorization. The appellate court therefore vacated the district court's order denying the motion and construed Card's appeal as an implied request for authorization to file another § 2255 motion, which it then denied.

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    Card v. United States, 10th Cir. (2007)

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    This order summarizes a district court case involving Daniel Card's appeal of the denial of his Rule 60(b)(6) motion seeking relief from a previous judgment. The appellate court determined that Card's motion should have been treated as a successive 28 U.S.C. § 2255 motion rather than a true Rule 60(b) motion, as it asserted a basis for relief from his underlying conviction. As such, the district court lacked jurisdiction to rule on the motion and should have transferred it to the appellate court for authorization. The appellate court therefore vacated the district court's order denying the motion and construed Card's appeal as an implied request for authorization to file another § 2255 motion, which it then denied.

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    Filed: 2007-03-28 Precedential Status: Non-Precedential Docket: 06-4242

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    This order summarizes a district court case involving Daniel Card's appeal of the denial of his Rule 60(b)(6) motion seeking relief from a previous judgment. The appellate court determined that Card's motion should have been treated as a successive 28 U.S.C. § 2255 motion rather than a true Rule 60(b) motion, as it asserted a basis for relief from his underlying conviction. As such, the district court lacked jurisdiction to rule on the motion and should have transferred it to the appellate court for authorization. The appellate court therefore vacated the district court's order denying the motion and construed Card's appeal as an implied request for authorization to file another § 2255 motion, which it then denied.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    34 views10 pages

    Card v. United States, 10th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    This order summarizes a district court case involving Daniel Card's appeal of the denial of his Rule 60(b)(6) motion seeking relief from a previous judgment. The appellate court determined that Card's motion should have been treated as a successive 28 U.S.C. § 2255 motion rather than a true Rule 60(b) motion, as it asserted a basis for relief from his underlying conviction. As such, the district court lacked jurisdiction to rule on the motion and should have transferred it to the appellate court for authorization. The appellate court therefore vacated the district court's order denying the motion and construed Card's appeal as an implied request for authorization to file another § 2255 motion, which it then denied.

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    F I L E D

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    TENTH CIRCUIT

    March 28, 2007


    Elisabeth A. Shumaker
    Clerk of Court

    U N ITED STA TES O F A M ER ICA,


    Respondent-Appellee,
    v.

    No. 06-4242
    (D. of Utah)

    D A N IEL L. C AR D,

    (D.C. No. 06-CV-529-TC)

    Petitioner-A ppellant.

    OR D ER AND JUDGM ENT *

    Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **

    This matter stems from a pro se appeal by Daniel L. Card of a district court
    order denying his motion seeking relief from the operation of a judgment under
    Federal Rule of Civil Procedure Rule 60(b)(6). Because the motion must be
    treated as a successive motion of relief under 28 U.S.C. 2255, we vacate the
    district courts order for lack of subject-matter jurisdiction, construe Cards

    This order and judgment 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.
    **

    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

    notice of appeal and appellate brief as an implied application for authorization to


    file another 2255, and deny authorization.
    I. Background
    In 1997, Daniel L. Card was convicted for possessing an unregistered
    firearm in violation of 26 U.S.C. 5861(d) and 5871, and for being a felon in
    possession of a firearm in violation of 18 U.S.C. 922(g)(1). He was sentenced
    to 87 months imprisonment and three years of supervised release. This court
    upheld Cards conviction and sentence on direct appeal. See United States v.
    Card, 162 F.3d 1174 (10th Cir. 1998).
    In 1999, Card filed his first motion to set aside his sentence pursuant to 28
    U.S.C. 2255, which the district court promptly denied. On appeal, we denied
    Card a certificate of appealability (COA) and dismissed his case. See United
    States v. Card, 242 F.3d 391 (10th Cir. 2000). In 2003, he filed a motion for
    authorization to file another 2255 petition claiming that the shotgun used in his
    trial was obtained as a result of an illegal search of his home. The motion was
    denied for failing to satisfy the stringent Antiterrorism and Effective Death
    Penalty Act standards for second or successive petitions in 2255. See United
    States v. Card, No. 03-4281 (10th Cir. Jan. 29, 2004).

    -2-

    On June 30, 2006, Card filed a motion for relief from his direct and habeas
    appeals pursuant to Rule 60(b)(6) in the district court. 1 In his motion, Card
    alleges that his convictions were premised on an illegal search and fraudulent
    misrepresentations by the prosecution. On July 17, 2005, the court, by letter,
    asked Card if his motion might more appropriately be brought under 2255 and
    asked him if the court should convert the motion to a 2255 motion to vacate.

    In 2000, Card was separately convicted of two counts of armed credit


    union robbery in violation of 18 U.S.C. 2113(a) and (d), and two counts of
    using or carrying a sawed-off shotgun during the robberies in violation of 18
    U.S.C. 924(c)(1). He was sentenced to 406 months in prison and five years of
    supervised release. W hile Card inadvertently (w e assume) included documents
    from his 2000 conviction in his motion papers before the district court, based on
    his allegations we construe this Rule 60(b) motion to only encompass his 1997
    convictions.
    Since the sentence on the 2000 convictions runs concurrently with the 1997
    sentence, it is unclear whether Card remains incarcerated on his 1997 sentence,
    raising mootness concerns. Nevertheless, our jurisdiction is unaffected because
    he is yet to serve his supervised release sentence. See Oyler v. Allenbrand, 23
    F.3d 292, 29394 (10th Cir. 1994) (a habeas appeal is not moot if a petitioner
    faces possible collateral consequences from the conviction); United States v.
    Castro-Rocha, 323 F.3d 846, 847 n.1 (10th Cir. 2003) ([A ] defendants
    unexpired term of supervised release, which could be reduced by a favorable
    appellate decision, is sufficient to defeat a claim of mootness.).
    Furthermore, in Cards motion, he asks for relief from the operation of the
    judgm ent of his appeals, from his direct to his 2241. First, the record shows
    that Card initially filed a 2255 petition, not a 2241 petition. Second, to the
    extent Card wishes this Rule 60(b) motion to reach his underlying firearms
    convictions, we hold that it does not. A partys appeal from the denial of a Rule
    60(b) motion raises for review only the district courts order of denial and not
    the underlying judgment itself. Van Skiver v. United States, 952 F.2d 1241,
    1243 (10th Cir. 1991).
    -3-

    The court advised Card that if you wish for [the court] to treat your
    motion as a 2255 motion, a second motion could be treated as a successive
    motion and subject to review by the Tenth Circuit Court of Appeals. Second or
    successive petitions for habeas relief are subject to standards articulated in 28
    U.S.C. 2244(b). Card responded to the district court stating that he did not want
    his motion converted to a 2255 petition. On August 1, 2006, the district court
    denied C ards Rule 60(b)(6) motion [b]ecause the only relief to w hich M r. Card
    is entitled can be found under 2255.
    Card filed a notice of appeal on September 29, 2006 arguing that the
    district court misconstrued the statutory language of Rule 60(b). W e now
    consider his appeal and vacate the district courts order. For the reasons set forth
    below, we construe Cards appeal as a request for authorization to file a
    successive 2255 petition and deny authorization.
    II. Analysis
    W e recently set out the substantive and procedural rules that federal district
    and appellate courts must follow when ruling on a Rule 60(b) motion challenging
    the denial of a 2254 or 2255 petition. Spitznas v. Boone, 464 F.3d 1213,
    121519 (10th Cir. 2006). This articulation was in response to the Supreme
    Courts decision in Gonzalez v. Crosby, 545 U.S. 524 (2005), which altered our
    circuit rule to treat all Rule 60(b) motions in habeas proceedings as a second or
    successive habeas petition for purposes of 2244. Cf. Lopez v. Douglas, 141
    -4-

    F.3d 974 (10th Cir. 1998). In Gonzalez, the Supreme Court distinguished
    between true Rule 60(b) motions that do not need to meet the stringent
    standards of 2244 and motions that are actually a second or successive habeas
    petition requiring adherence to 2244. Gonzalez, 545 U.S. at 53233.
    W e now apply the Spitznas framew ork to Cards motion.
    A.

    Successive Petition or True Rule 60(b) motion

    According to Spitznas, the first step for the district court is to determine
    . . . whether the motion is a true Rule 60(b) motion or a second or successive
    petition. 464 F.3d at 1216. A motion is a true Rule 60(b) if it (1) challenges a
    procedural ruling of the habeas court which precluded a merits determination of
    the habeas application, or (2) challenges a defect in the integrity of the federal
    habeas proceeding. Id. at 121516. A Rule 60(b) motion is a second or
    successive petition if it in substance or effect asserts or reasserts a federal basis
    for relief from the petitioners underlying conviction. Id. at 1215. The district
    court did not make an explicit ruling on this issue.
    Notwithstanding the lack of an express finding, we believe the district
    court could not avoid concluding that Cards motion was a successive habeas
    claim. Card asserts fraudulent behavior by prosecutors and law enforcement
    officials in concealing an illegal search of his home during his underlying federal
    conviction. As Spitznas dictates, a motion alleging fraud on . . . the federal
    district court that convicted and/or sentenced the movant in the case of a 2255
    -5-

    motion . . . will ordinarily be considered a second or successive petition because


    any ruling would inextricably challenge the underlying conviction proceeding.
    464 F.3d at 1216. This conclusion is consistent with the district courts warning
    to Card in its July 17, 2006 letter that the motion could be treated as a
    successive motion and subject to review by the Tenth Circuit Court of
    Appeals.
    B.

    Transfer of M otion

    Spitznas also holds that the district court should either (1) rule on the
    petitioners motion as any other Rule 60(b) motion if it is a true Rule 60(b)
    motion, or (2) transfer the matter to this court for authorization under
    2244(b)(3) if it is actually a second or successive petition. 464 F.3d at 1217.
    The district court failed to do either. Instead, in the August 1, 2006 order, the
    district court summarily denied Cards motion [b]ecause the only relief to which
    M r. Card is entitled can be found under 2255.
    W hile the district court properly invited Card to convert his motion to a
    successive 2255 motion, it was without jurisdiction to deny the motion when he
    declined the invitation. Since the motions true nature was a second or successive
    habeas petition, the district court has no jurisdiction over the matter, 28 U.S.C.
    2244(b)(3)(B). The district court therefore should have transferred the action to
    this court under 28 U.S.C. 1631, authorizing the transfer of civil action or
    appeal filed without jurisdiction, in the interest of justice, to any other court in
    -6-

    which the action or appeal could have been brought at the time it was filed or
    noticed. Such a rule is not new to the circuit. See Coleman v. United States,
    106 F.3d 339, 341 (10th Cir. 1997) ([W]hen a second or successive petition for
    habeas corpus relief under 2254 or 2255 motion is filed in the district court
    without the required authorization by this court, the district court should transfer
    the petition or motion to this court in the interest of justice pursuant to [28
    U.S.C)] 1631.). 2
    C.

    Appellate Review of District Courts Disposition

    Spitznas next dictates our review of a district courts disposition of a Rule


    60(b) motion. If the district court correctly treats the motion as a true Rule 60(b)
    motion and denies it, we w ill require a COA before proceeding with the m ovants
    appeal. Spitznas, 464 F.3d at 1218. On the other hand, if the district court
    construes the motion as a second or successive petition, we will not require a
    COA to determine if the motion is in fact a second or successive petition or if the
    matter w arrants authorization to file since there is technically nothing to appeal.
    Id. W e retain ultimate responsibility for determining the true nature of a Rule

    Since the rule in Coleman, which was re-articulated in Spitznas, only


    states that district courts should transfer a Rule 60(b) motion to this court if it is
    actually a second or successive petition, it is a hortatory rather than a compulsory
    command and so impliedly the district court may also dismiss an improper Rule
    60(b) motion for lack of jurisdiction. See Spitznas, 464 F.3d at 1227. W e do not
    read the district courts order as disavowing its jurisdiction.
    -7-

    60(b) motion if the motions characterization is uncertain, in dispute by the


    petitioner, or if we disagree with the district courts determination. Id. at 1219.
    Here, the district court likely recognized the motion as a successive
    petition, but failed to transfer the matter to this court. Spitznas counsels, If the
    district court has incorrectly treated a second or successive petition as a true Rule
    60(b) motion and denied it on the merits, we will vacate the district courts order
    for lack of jurisdiction and construe the petitioners appeal as an application to
    file a second or successive petition. Id.
    W hile the district court did not treat the second or successive petition as a
    true Rule 60(b) motion, as we stated above, the district court should have
    forwarded the motion to this court as an application for authorization to file a
    second or successive petition or at the very least dismissed the motion for lack of
    jurisdiction. Accordingly, we vacate for lack of jurisdiction the district courts
    order denying Cards R ule 60(b) motion and treat Cards appeal and appellate
    brief as an implied application to file a second or successive petition. See Pease
    v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997) (construing a notice of appeal and
    appellate brief as an implied application for leave to file a successive 2254
    petition). 3

    In Spitznas, we similarly faced a district courts summary denial of a


    Rule 60(b) motion which contained a second or successive habeas claim. W e
    construed the movants appeal as an application to file a successive petition.
    Spitznas, 464 F.3d at 1226.
    -8-

    D.

    Request for Successive 2255 Application

    W e now turn to Cards 2255 application and deny the request for
    authorization to file a second or successive application. Under 28 U.S.C.
    2244(b)(1) and 2255, a claim presented in a second or successive habeas corpus
    application . . . that was presented in a prior application shall be dismissed. In
    November 2003, Card filed his second 2255 petition. In that motion, Card
    asserted the shotgun that served as the basis of his convictions was obtained as a
    result of an illegal search of his home because a Utah police officer, who testified
    for the prosecution, failed to secure a second search warrant. He claimed that the
    officers trial testimony gave a false impression to the court that the information
    about the shotgun came from a legal search. W e denied Card authorization for
    failure to conform with 2244 and 2255s criteria for a second habeas petition.
    In his current Rule 60(b) motion, Card argues the same points. He again
    alleges that Utah police failed to obtain a second search warrant and that the
    shotgun was obtained through an illegal search. He accuses the government of
    fraud by letting the conviction stand knowing that evidence was obtained
    illegally. The claims in Cards second and now third 2255 petition are
    indistinguishable and we therefore deny Card authorization to file a successive
    claim concerning the alleged fraud in his underlying federal conviction.

    -9-

    III. Conclusion
    Because Cards Rule 60(b) motion is truly a successive motion for relief
    under 28 U.S.C. 2255, we VACATE the district courts order for lack of
    jurisdiction, read Cards appeal as an implied application for authorization to file
    another 2255, and DENY authorization for a COA.

    Entered for the Court,

    Timothy M . Tymkovich
    Circuit Judge

    -10-

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