FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         February 16, 2010
                                   TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,

 v.                                                          No. 09-1340
                                                  (D.C. Nos. 99-CV-00882-REB and
 DANIEL BAZEZA MAZUN,                                    96-CR-00208-REB)
                                                              (D. Colo.)
        Defendant-Appellant.




                              ORDER AND JUDGMENT*


Before HARTZ, SEYMOUR and EBEL, Circuit Judges.


       Defendant-Appellant Daniel Bazeza Mazun has filed a notice of appeal from the

district court’s order denying his motion under Federal Rule of Civil Procedure 60(b)(4),

which seeks to reopen the district court’s denial of his 28 U.S.C. § 2255 motion on the

ground that his underlying conviction is void. He also seeks a certificate of appealability


       * After examining appellant=s brief and the 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) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
from this court. We conclude that Mr. Mazun’s Rule 60(b) motion must be treated as a

second § 2255 motion, and therefore vacate the district court’s order for lack of subject-

matter jurisdiction, treat the notice of appeal and request for a certificate of appealability

as an implied application for authorization to file another § 2255 motion, and deny

authorization.

I.     Background

       In 1997, Mr. Mazun was convicted of conspiracy to distribute methamphetamine

and sentenced to 324 months in prison. We affirmed his conviction and sentence on

direct appeal. United States v. Mazun, 

(10th Cir. 1998) (unpublished table

disposition). In 1999, Mr. Mazun filed a motion pursuant to 28 U.S.C. § 2255, which the

district court denied. Mr. Mazun sought permission from this court to file a successive

§ 2255 motion in district court in 2005, but we denied this request. Mazun v. United

States, No. 05-1166 (10th Cir. July 5, 2005); see also 28 U.S.C. § 2255(h) (requiring

approval of court of appeals before filing a second or successive § 2255 motion).

       On April 3, 2009, Mr. Mazun filed a “Motion under Federal Rules of Civil

Procedure 60(b)(4)” in the district court, seeking relief from the district court’s denial of

his original § 2255 motion. In that motion, Mr. Mazun argued that the district court’s

failure to “submit to the jury an essential element of the crime—the type of drugs and the

drug quantity—is a jurisdictional defect which renders [the district court’s] judgment

void” under Rule 60(b). (R. at 10.) The district court denied this motion “principally on


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the ground that Fed. R. Civ. P. 60(b)(4) is not available to federal prisoners to challenge

the validity of the criminal judgments against them.” (R. at 59.)

II.    Discussion

       Federal prisoners may only bring a Rule 60(b) motion in a § 2255 proceeding if

the motion challenges either

       a procedural ruling of the habeas court which precluded a merits
       determination of the habeas application . . . or . . . a defect in the integrity
       of the federal habeas proceeding, provided that such a challenge does not
       itself lead inextricably to a merits-based attack on the disposition of a prior
       habeas petition.

Spitznas v. Boone, 

, 1215-16 (10th Cir. 2006); see also In re Lindsey, 

, 1175 (10th Cir. 2009) (per curiam) (applying Spitznas to § 2255 proceedings.)

If the Rule 60(b) motion does not meet either of these criteria, then it should be treated as

a second or successive § 2255 motion, which requires approval from this court before it

can be brought in district court. 

; see also 28 U.S.C.

§ 2255(h). If the district court determines that the Rule 60(b) motion actually is an attack

on the merits of the prior § 2255 ruling, then it should either refer the matter to this court

for authorization under § 2255(h), or dismiss the motion for lack of jurisdiction.

.

       Mr. Mazun maintains that his Rule 60(b) motion raises only a procedural

challenge, rather than a substantive challenge, to the district court’s ruling on his § 2255

motion. Specifically, Mr. Mazun contends that the district court lacked jurisdiction to

rule on his § 2255 motion because the judgment entered against him in the criminal case
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was void due to improper jury instructions. According to Mr. Mazun, this is a

procedural challenge because the district court dismissed the claim of improper jury

instructions in his original § 2255 motion on the ground that the claim was time-barred.

But Mr. Mazun does not contest the determination that his claim was in fact time-barred.

Instead, he contends that his underlying conviction is void, and that the district court

therefore did not have jurisdiction to deny his § 2255 motion.

       Accordingly, this challenge, “in substance or effect[,] asserts . . . a federal basis for

relief from the petitioner’s underlying conviction,” 

because finding in favor

of Mr. Mazun would require the court to conclude that the allegedly improper jury

instructions offered during his trial render the judgment against him void. A challenge to

one’s conviction is the proper subject of a § 2255 motion, not a Rule 60(b) motion. See

In re Cline, 

, 1253 (10th Cir. 2008) (stating that “a claim nominally filed

under Rule 60(b) in a habeas proceeding is, in substance, a successive habeas claim if it

asserts or reasserts a substantive challenge to the validity of the conviction”). We

therefore agree with the district court that Mr. Mazun’s Rule 60(b) motion “challenge[s]

the validity of the criminal judgment[] against” him (R. at 59), and is not a “true” Rule

60(b) motion, but rather a second § 2255 motion.

       On this basis, the district court should have either referred the matter to this court

to consider whether to certify a second or successive § 2255 motion, or dismissed the

matter for lack of subject-matter jurisdiction. 

. Instead, the

district court denied the motion. Because Mr. Mazun’s Rule 60(b) motion was in
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substance a second § 2255 motion, however, the district court lacked subject-matter

jurisdiction to do so. Accordingly, we must vacate the district court’s order denying Mr.

Mazun’s Rule 60(b) motion.

       We may, however, treat Mr. Mazun’s notice of appeal and request for a certificate

of appealability as an application to this court for leave to file a second § 2255 motion.

In United States v. Nelson, we treated a prisoner’s notice of appeal and appellate brief as

an application for leave to file a second § 2255 motion when the district court improperly

denied—rather than dismissed for lack of jurisdiction—the prisoner’s motion to amend

his § 2255 motion pursuant to Federal Rule of Civil Procedure 15. 

, 1149

(10th Cir 2006). We will construe Mr. Mazun’s appellate filings here in the same

manner.

       Section 2255(h) provides:

       A second or successive motion must be certified as provided in section
       2244 by a panel of the appropriate court of appeals to contain--

       (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 the
       movant 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(h). Here, Mr. Mazun has not identified any newly discovered evidence

or new rules of constitutional law with retroactive applicability that would afford him

relief under § 2255. We therefore deny leave to file a second motion.

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III.   Conclusion

       We VACATE the judgment of the district court; DENY Mr. Mazun’s implied

application for leave to file a second § 2255 motion; and DISMISS his claims and action.

We DENY Mr. Mazun’s motion for leave to proceed in forma pauperis.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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