FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                          July 2, 2018
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-3146
                                                  (D.C. No. 2:04-CR-20089-KHV-1)
MONTGOMERY CARL AKERS,                                        (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.
                  _________________________________

      Montgomery Akers appeals an order imposing filing sanctions and denying his

combined motion to reopen habeas proceedings and to recuse the district court judge.

We conclude that the motion should have been dismissed for lack of jurisdiction, but

affirm the district court’s imposition of sanctions.

                                            I

      While serving a federal sentence for bank fraud and other charges, Akers pled

guilty to one count of wire fraud. The charge was based on a fraudulent check

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
scheme Akers operated from prison. He was sentenced to 327 months’

imprisonment. We affirmed on direct appeal. United States v. Akers, 261 F. App’x

110, 116 (10th Cir. 2008) (unpublished). Akers unsuccessfully pursued relief under

28 U.S.C. § 2255. United States v. Akers, 384 F. App’x 758, 759 (10th Cir. 2010)

(unpublished). He has filed numerous motions and appeals since then. Noting some

26 orders related to these filings, the district court warned Akers of the potential it

would impose filing sanctions. After permitting Akers to respond, the court ordered

that any future pro se filings in Akers’ criminal case it found frivolous would result

in a sanction of $500.

      Undeterred, Akers filed a combined motion for recusal of the district court

judge and reopening of his habeas proceedings. The district court issued an order to

show cause as to why a sanction should not be imposed. After reviewing Akers’

response, the court denied his combined motion and imposed a $500 sanction. It also

warned of additional sanctions if Akers made further frivolous filings. Akers timely

appealed.

                                            II

      Before addressing the merits of this appeal, we consider the district court’s

jurisdiction. See 1mage Software, Inc. v. Reynolds & Reynolds Co., 

,

1048 (10th Cir. 2006) (noting this court’s duty to consider sua sponte the district

court’s subject matter jurisdiction). District courts possess jurisdiction over motions

to reopen habeas proceedings only if they are “true” Fed. R. Civ. P. 60(b) motions. If

a motion “in substance or effect asserts or reasserts a federal basis for relief from the

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petitioner’s underlying conviction” then it must be treated as a second or successive

§ 2255 motion and dismissed. Spitznas v. Boone, 

, 1215 (10th Cir.

2006). A motion alleging fraud on the court that “relates solely to fraud perpetrated

on the federal habeas court . . . will be considered a true 60(b) motion.” 

(emphasis omitted). But if the fraud “includes (or necessarily implies) related fraud

on . . . the federal district court that convicted and/or sentenced the movant . . . , then

the motion will ordinarily be considered a second or successive petition because any

ruling would inextricably challenge the underlying conviction proceeding.” 

combined motion, Akers claims that the district court judge and a

prosecutor began conspiring against him in 2000. He alleges that he received

information about the conspiracy in August 2001 and June 2004. The judge, defense

counsel, and prosecutor purportedly met in July 2006. However, the judge later

denied any ex parte contacts. Akers also argues that his grand jury indictment was

“non-existent” and that the district court improperly recommended that his mail be

inspected by prison officials. These allegations relate to Akers’ underlying

conviction and sentence, which became final in November 2006, not his initial

habeas motion. Because Akers complains of “fraud on . . . the federal district court

that convicted and/or sentenced” him, rather than fraud in relation to the disposition

of his habeas motion, the district court lacked jurisdiction over those claims. 

jurisdiction over the merits does not necessarily invalidate a sanctions

order. In Willy v. Coastal Corp., 

(1992), the Supreme Court rejected

plaintiff’s “contention that Rule 11 sanctions must be aborted because at a time after

                                             3
the sanctionable conduct occurred, it was determined by the Court of Appeals that the

District Court lacked subject-matter jurisdiction.” 

Although a court may

not continue adjudicating a case once it has been determined that the court lacks

jurisdiction, “such a determination does not automatically wipe out all proceedings

had in the district court at a time when the district court operated under the

misapprehension that it had jurisdiction.” 

distinguished a prior case,

United States Catholic Conference v. Abortion Rights Mobilization, Inc., 

(1988), which held that a civil contempt sanction necessarily failed because the

district court lacked jurisdiction. 

. The Willy Court explained

that the purpose of civil contempt is “to coerce compliance with the court’s decree,”

and thus “it is logical that the order itself should fall with a showing that the court

was without authority to enter the decree.” 

. “The interest in

having rules of procedure obeyed, by contrast, does not disappear upon a subsequent

determination that the court was without subject-matter jurisdiction.” 

imposed in this case are more akin to those at issue in Willy

than those considered in United States Catholic Conference. In Willy, the Court

noted that Rule 11 sanctions may be imposed “for filing a frivolous 

. And it stated that such sanctions are “collateral” to the merits because

the issue is whether the judicial process has been abused. 

has

previously concluded that other similar sanctions may be imposed despite lack of

merits jurisdiction. See Lorillard Tobacco Co. v. Engida, 

, 1218 (10th

Cir. 2010) (sanctions under state statute for frivolous claim “may be imposed despite

                                            4
a court’s lack of subject matter jurisdiction to adjudicate the underlying merits of the

action” (quotation omitted)); Olcott v. Del. Flood Co., 

, 1553 (10th Cir.

1996) (“We conclude the district court’s sanction imposed pursuant to Rule 16(f) and

37(b) is sufficiently analogous to Rule 11 sanctions to be enforced despite a lack of

subject-matter jurisdiction.”). We thus conclude that the district court’s sanctions

order may stand even though it lacked authority to resolve the underlying motion.

                                           III

       Having decided the scope of the district court’s authority, we decline to assist

Akers in further wasting judicial resources with extensive discussion. We agree with

the district court that filing sanctions were appropriate. See Tripati v. Beaman, 

, 354 (10th Cir. 1989) (setting forth relevant factors for imposing sanctions).

We are not persuaded by any of the arguments Akers advances in his briefing or in

the several motions he has filed in this court. We caution Akers that future frivolous

appeals may result in an order requiring him to show cause to avoid appellate filing

restrictions or sanctions.

       We AFFIRM the district court’s imposition of sanctions, but REMAND for

the district court to dismiss Akers’ combined motion for lack of jurisdiction. We

DENY all motions Akers has filed on appeal.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge


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