F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         December 14, 2005
                                   TENTH CIRCUIT
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,              Nos. 05-6149 and 05-6193
          v.                                             (W.D. of Okla.)
 RICHARD ALLAN BARRETT,                           (D.C. Nos. CV-05-239-C and
                                                         97-CR-44-C)
                  Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Defendant-Appellant Richard Allan Barrett, a federal prisoner appearing

pro se, filed a petition for writ of habeas corpus in the district court for the

Western District of Oklahoma pursuant to 28 U.S.C. § 2255. He appeals (1) the

district court’s dismissal of his petition as untimely; and (2) the court’s decision

to construe a later filing as a successive § 2255 petition, as opposed to a Rule


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         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.
60(b)(4) motion. Because Barrett has not made a substantial showing of a denial

of a constitutional right, 28 U.S.C. § 2253(c)(2), and because we agree with the

district court that Barrett’s second filing was properly construed as a second or

successive § 2255 motion, we deny a COA and dismiss the appeal.

                         I. Background and Legal Issues

      The parties are familiar with the facts of the case and we need not restate

them here. In cases such as this one where the district court denies a habeas

petition on procedural grounds without reaching the underlying constitutional

claim, a COA should issue if the movant shows that (1) reasonable jurists would

find it debatable whether the petition states a valid claim of the denial of the

constitutional right, and (2) reasonable jurists would find it debatable whether the

district court was correct in its procedural ruling. Slack v. McDaniel, 

, 484 (2000).

      A. Booker is Not Retroactively Applicable

       In Barrett’s first petition before the district court, he asserted that his

sentence violated the tenets of United States v. Booker, 

(2005).

We agree with the district court that Barrett’s petition is well outside the one-year

limitations period set by the Antiterrorism and Effective Death Penalty Act

(AEDPA). See 28 U.S.C. § 2244(d)(1)(A). In cases such as this one, where

Barrett’s conviction became final prior to the enactment of AEDPA, the one-year


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limitations period runs from the Act’s effective date, which was April 24, 1996.

Hoggro v. Boone, 

, 1225-1226 (10th Cir. 1998). Because Barrett

did not file his initial petition until 2005, it is untimely.

       Furthermore, even if the petition were not untimely, Booker does not apply

retroactively to initial habeas petitions in criminal cases that became final before

its effective date of January 12, 2005. See United States v. Bellamy, 

, 1184 (10th Cir. 2005). Barrett’s conviction and sentence became final in

1998, long before the Supreme Court issued Booker on January 12, 2005.

Accordingly, even if Barrett’s petition were timely, the relief he seeks is

unavailable.

       B. Barrett’s Successive Petition was Properly Construed by the
       District Court

       Following the district court’s denial order, Barrett filed what he describes

as a Rule 60(b)(4) motion to relieve him from final judgment due to the judgment

being void. The district court construed the motion as a second or successive

habeas petition and transferred it to the Tenth Circuit. See 28 U.S.C. § 2255 (“[a]

second or successive motion must be certified . . . by a panel of the appropriate

court of appeals[.]”) On May 19, 2005, the Tenth Circuit dismissed the

transferred petition.

       This court has held that “Rule 60(b) cannot be used to circumvent restraints

on successive habeas petitions.” Lopez v. Douglas, 

, 975 (10th Cir.

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1998) (per curiam) (holding that petitioner’s Rule 60(b)(6) motion was an implied

application under 28 U.S.C. § 2244(b)(3)(A) for leave to file a second habeas

petition pursuant to § 2254 in the district court). Thus, we treat a post-judgment

Rule 60(b) motion filed in a habeas proceeding as a second or successive motion

under AEDPA. See 

the district court properly construed the filing as

a successive petition, which required the court to transfer the matter to the Tenth

Circuit.

      To obtain our authorization to file a second § 2255 motion, Barrett was

required to make the requisite showing under AEDPA, which includes

establishing (1) newly discovered evidence that, if proven and viewed in the light

of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable fact finder would have found him guilty

of the offense, see 28 U.S.C. § 2244(b)(2)(B); or (2) a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, see 28

U.S.C. § 2244(b)(2)(A). As previously discussed, Barrett’s successive petition

does not rely on a new rule of constitutional law made retroactive to cases on

collateral review by the Supreme Court, because Booker is not retroactively

applicable to his case. Nor does Barrett bring to light new facts or cast doubt

upon the sufficiency of the evidence against him. He therefore failed to meet

AEDPA’s requirements for successive petitions.


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                                II. Conclusion

      Accordingly, we DENY a COA and DISMISS these appeals. We deny

Barrett’s motions to proceed in forma pauperis.

                                     Entered for the Court

                                     Timothy M. Tymkovich
                                     Circuit Judge




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