F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             FEB 21 2001
                                TENTH CIRCUIT
                           __________________________                   PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-3210
                                                            (D. Kan.)
 PATRICK E. WASHINGTON,                         (D.Ct. No. 91-CR-20022-01-GTV)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Patrick E. Washington, a federal prisoner appearing pro se,


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
appeals the district court’s decision dismissing his motion filed pursuant to

Federal Rule of Civil Procedure 60(b)(6). We construe Mr. Washington’s appeal

as an implied application to file a second or successive motion under 28 U.S.C.

§ 2255, and deny Mr. Washington leave to file such a motion.



       The procedural background in this case warrants a short discussion. Mr.

Washington was convicted on three counts of distribution of cocaine base, and

unsuccessfully appealed his conviction and sentence to this court. See United

States v. Washington, 

, 1511, 1518 (10th Cir. 1993), cert denied, 

(1994). Following his direct appeal, Mr. Washington filed a motion

under the Freedom of Information Act (FOIA) with the district court, and later

filed two supplemental documents which the district court construed as a motion

setting forth claims under 28 U.S.C. § 2255. 1 See Washington, 

,

**1-2. The district court rejected both Mr. Washington’s FOIA and § 2255

motions in one order, discussing the merits of each motion separately. 

6. No appeal was taken.




       1
         Because the record does not contain the supplemental documents filed by Mr.
Washington, we rely on the district court’s identification of the issues raised therein and
its cogent and thorough discussion of the merits of those issues. See Washington v.
United States, 

, **1-6 (D. Kan. Sept. 27, 1996).


                                             -2-
      Thereafter, Mr. Washington filed two unsuccessful § 2255 motions, one pro

se and one by counsel. The district court dismissed the § 2255 motion filed by

counsel as successive, finding Mr. Washington failed to obtain prior authorization

from this court for filing. The district court nevertheless transferred the § 2255

motion filed pro se to this court, construing it as an implied application for

authorization to file a successive § 2255 motion, and we denied the implied

application. Shortly thereafter, Mr. Washington filed the “Motion for Relief from

Judgment” pursuant to Rule 60(b)(6), at issue in this case. The district court

denied Mr. Washington’s Rule 60(b)(6) motion, determining Mr. Washington did

not provide any reason which justified relief from the district court’s prior

judgment on his first § 2255 motion. The district court also denied four

subsequent motions filed by Mr. Washington which the district court construed as

motions to reconsider its denial of Mr. Washington’s Rule 60(b)(6) motion.



      On appeal, Mr. Washington contends the district court abused its discretion

in denying his Rule 60(b)(6) motion. In support of this contention, Mr.

Washington asserts the district court improperly construed his FOIA request as a

§ 2255 motion. Mr. Washington asserts the district court made this error because

Mr. Washington filed the FOIA request and supplemental documents pro se,

thereby causing confusion on his intent to file only a FOIA request and not a §


                                          -3-
2255 motion. In addition, Mr. Washington contends his pro se status and

ineffective assistance of his post-conviction counsel warrants the filing of a

successive § 2255 motion. Specifically, Mr. Washington claims: 1) two different

attorneys acted ineffectively by failing to file § 2255 motions, causing Mr.

Washington to file his own pro se pleadings initiating the first and second § 2255

motions; and 2) one of those attorneys continued to act ineffectively by eventually

filing a third, unsatisfactory § 2255 motion.



      We have held a Rule 60(b)(6) motion cannot be used to circumvent

restrictions imposed on successive motions. See Lopez v. Douglas, 

,

975 (10th Cir.) (per curiam), cert. denied, 

(1998). Thus, we treat a

post-judgment Rule 60(b)(6) motion filed in a habeas proceeding as a second or

successive motion under the Antiterrorism and Effective Death Penalty Act of

1996. See 

to file a second or successive § 2255 motion in the district

court, the movant must obtain prior authorization from this court. See 28 U.S.C.

§§ 2244(b)(3)(A), 2255. Because Mr. Washington failed to obtain our

authorization, the district court lacked jurisdiction to decide his Rule 60(b)

motion and motions to reconsider, and therefore, we must vacate the district

court’s orders denying those motions. See 

.




                                          -4-
      Having made this determination, we next construe Mr. Washington’s notice

of appeal and brief on appeal together as an implied application for leave to file

another § 2255 motion in the district court. See 

In order to obtain

authorization from this court to file a second § 2255 motion in the district court,

Mr. Washington must make the requisite showing under 28 U.S.C. § 2255.

Specifically, he must show: “(1) newly discovered evidence that, if proven and

viewed in light of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that no reasonable factfinder would have found

[him] guilty of the offense; or (2) a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.” 28 U.S.C. § 2255. In short, Mr. Washington must

demonstrate either: 1) previously undiscoverable facts sufficient to establish he

would not have been found guilty of the offense; or 2) reliance on a new,

retroactive rule of constitutional law.



      Following a review of Mr. Washington’s implied application, we determine

his application does not meet the requirements under § 2255. Specifically, Mr.

Washington does not allege nor show a previously undiscoverable factual

predicate existed sufficient to establish that no reasonable fact finder would have

found him guilty of the underlying offense, or that his claims rely on a new,


                                          -5-
retroactive rule of constitutional law. 28 U.S.C. § 2255. Clearly, Mr.

Washington’s contention that the district court improperly construed his FOIA

request as a § 2255 motion is insufficient to meet this criteria. First, the record

shows the district court treated and rejected his FOIA request and initial § 2255

motion as separate matters rather than construing them together. See Washington,

, at **1-6. Second, Mr. Washington’s supplemental pleadings

raised issues warranting § 2255 motion treatment. 

intent to

raise the issues therein for relief under § 2255 is evidenced by the fact Mr.

Washington raised two of the same claims in his subsequent § 2255 motion.

Finally, Mr. Washington did not appeal either the district court’s determination to

construe his supplemental pleadings as a § 2255 motion, or the district court’s

decision on the merits of the issues raised therein.



      We also reject Mr. Washington’s argument he should be able to file a

successive § 2255 motion based on: 1) his pro se status in preparing his first and

second § 2255 motions; 2) alleged ineffective assistance of counsel in failing to

prepare his first and second § 2255 motions; and 3) alleged ineffective assistance

of counsel in preparing his third § 2255 motion. First, none of these contentions

meets the requirements necessary for obtaining approval for filing a second or

successive § 2255 motion. Moreover, in considering second or successive


                                          -6-
motions, we have held pro se status does not justify reconsideration of the choices

made in prior habeas matters. See Tapia v. Lemaster, 

, 1196 (10th

Cir.), cert. denied, 

(1999). Similarly, because no constitutional

right to counsel exists in collateral attacks on a conviction, ineffective assistance

of counsel during collateral post-conviction proceedings is not grounds for, nor an

excuse to file, a successive or abusive habeas writ. See Bloomer v. United States,

, 191 n.1 (2d Cir. 1998); Callins v. Johnson, 

, 212-13

(5th Cir.), cert. denied, 

(1996); Washington v. Delo, 

,

760 (8th Cir.), cert. denied, 

(1995).



      For these reasons, we conclude Mr. Washington fails to make the prima

facie showing necessary to satisfy the requirements under the Antiterrorism and

Effective Death Penalty Act for a second or successive habeas application.

Accordingly, we VACATE the district court’s orders denying Mr. Washington’s

Rule 60(b)(6) motion and motions to reconsider, and deny Mr. Washington’s

implied application for leave to file a second or successive § 2255 motion in the

district court. We further deny Mr. Washington’s motion to proceed in forma

pauperis. Because this appeal involves an implied application for leave to file a




                                          -7-
successive motion, no certificate of appealability is required and therefore, Mr.

Washington’s request for a certificate of appealability is denied.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




                                         -8-