United States vs. Morales-Morales, No. 06-3274 (10th Cir. 2007)
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS TENTH CIRCUIT April 23, 2007 Elisabeth A. Shumaker Clerk of Court U N ITED STA TES O F A M ER ICA, Plaintiff-Appellee, v. SIGIFREDO M ORA LES-M ORA LES, No. 06-3274 (D.C. Nos. 04-CV-3202-KHV and 02-CR-20082-KHV) (Kansas) Defendant-Appellant. ORDER * Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges. M r. M orales, a federal prisoner, seeks a Certificate of Appealability (COA ) to appeal the denial of his F ED . R. C IV . P. 60(b) motion challenging the denial of his earlier 28 U .S.C. § 2255 petition. To the extent we recognize M r. M orales motion as a true 60(b) motion, we deny that request. To the extent M r. M orales 60(b) motion is more properly classified as a second or successive § 2255 petition, we construe his application for a COA as a request to file a second or successive habeas, which we also deny. * This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. M r. M orales pled guilty to possessing cocaine with intent to distribute in violation of federal law. On June 9, 2003, the district court sentenced him to 121 months imprisonment. On June 18, 2004, M r. M orales filed a habeas petition pursuant to 28 U.S.C. § 2255. The district court denied that petition on January 7, 2005, and denied what the court construed as a timely motion to reconsider on February 24, 2005. M r. M orales filed what he designated as a motion pursuant to Rule 60(b) on June 12, 2006, seeking further reconsideration of the court s denial of his § 2255 petition. In his 60(b) motion, M r. M orales alleged that his failure to receive relevant transcripts had prevented him from effectively developing a claim under Blakely v. Washington, 542 U.S. 296 (2004). The court noted that the motion was not filed within a reasonable time under Rule 60(b)(6), and found that to the extent [it] could construe defendant s Blakely argument as part of his original Section 2255 motion, it would deny the 60(b) motion. Rec., vol. I, doc. 81 at 1-2. The court further pointed out that it had advised M r. M orales when it denied reconsideration of his first habeas petition that he must seek leave from this court to file a second or successive habeas petition under § 2255 if he wished to pursue the Blakely issue. Id. W e must first decide whether M r. M orales motion was a true Rule 60(b) motion or a mislabeled successive habeas petition. See Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006). To the extent he claims he failed to receive -2- pertinent transcripts in time to prepare his first § 2255 motion, we conclude the district court correctly characterized M r. M orales motion as a true Rule 60(b) motion. See id. (A true 60(b) motion . . . challenges a defect in the integrity of the federal habeas proceeding without leading to a merits-based attack on the disposition of a prior habeas petition. ). W ith respect to the merits of that motion, we note that in a December 20, 2004 order, the district court stated that transcripts had been sent to M r. M orales and determined that a brief extension of time [was] warranted for M r. M orales to file a reply brief. Rec., vol. I, doc. 69 at 2. W hen M r. M orales subsequently filed an untimely reply (which the court construed as a motion to reconsider), M r. M orales did not reassert he had not received the transcripts. W e therefore conclude he had access to transcripts and the opportunity to prepare his reply accordingly, and that jurists of reason would not disagree with the district court s denial of M r. M orales Rule 60(b) motion. See M iller-Ed v. Cockrell, 537 U.S. 322, 327 (2003). To the extent M r. M orales Blakely claim was considered by the district court on the merits, we note that challenges to the court s previous ruling on the merits are to be considered a successive habeas petition and not a 60(b) motion. Spitznas, 464 F.3d at 1216. W here such claims have been improperly cast as a 60(b) motion, on appeal we w ill vacate the relevant portions of the district court s order and treat the notice of appeal and appellate brief as an implied application to this court for leave to file a second § 2255 motion. United States v. Nelson, -3- 465 F.3d 1145, 1149 (10th Cir. 2006). To the extent the Blakely claim presents a claim of constitutional error omitted from the . . . initial habeas petition, it too is properly labeled a second habeas motion and considered by this court as such. Spitznas, 464 F.3d at 1216. Looking at M r. M orales Blakely claim in this light, we hold that he is not entitled to a second or successive petition under § 2255 because his claim is not based on newly discovered evidence or a new rule of constitutional law made retroactive to cases on collateral appeal. See 28 U.S.C. § 2255 ¶ 8. Accordingly, we deny leave to file a second or successive habeas petition. In sum, we D EN Y M r. M orales request for a COA to appeal the denial of his true Rule 60(b) motion, VAC ATE the district court s order to the extent it addressed the merits of M r. M orales Blakely claim, construe portions of M r. M orales request for a COA as an application to file a second or successive § 2255 petition, and D EN Y the request. ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge -4-
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