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Lopez v. Douglas

United States Court of Appeals, Tenth Circuit
Apr 8, 1998
141 F.3d 974 (10th Cir. 1998)

Summary

holding that the successive petition restrictions contained in 28 U.S.C. § 2244(b) apply to Rule 60(b) motions

Summary of this case from In re Abdur'rahman

Opinion

No. 96-6384.

Filed April 8, 1998.

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 86-CV-1890-T)

Submitted on the briefs:

After examining the brief filed by Alfonso A. Lopez 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); 10th Cir. R. 34.1.9. The case is submitted without oral argument.

Alfonso A. Lopez, pro se.

Before: ANDERSON, KELLY, and MURPHY, Circuit Judges.


Petitioner Alfonso Albert Lopez appeals the district court order denying his motion under Fed.R.Civ.P. 60(b)(6).

In 1981, Petitioner pled guilty in state court to murder in the first degree and was sentenced to life imprisonment. He also pled guilty to shooting with intent to kill and was sentenced to a twenty-five year term to run consecutively to the life imprisonment sentence. He did not move to withdraw his pleas or file direct appeals.

In August 1986, he filed his first 28 U.S.C. § 2254 petition, contending that he received ineffective assistance of counsel and that his guilty pleas were involuntary. The petition was denied on the merits. This court denied issuance of a certificate of probable cause and dismissed the appeal. Lopez v. Douglas, No. 87-2004 (10th Cir. Mar. 17, 1988) (unpublished).

In June 1996, he filed a motion under Fed.R.Civ.P. 60(b)(6) to vacate the judgement denying his first § 2254. He contended in relevant part that the decision in Cooper v. Oklahoma, 116 S.Ct. 1373 (1996), affected the district court's determination of his prior ineffective assistance of counsel claim because he was "prejudiced by his counsel's failure to request a pre-plea competency determination." Id. at 1-2. The district court adopted the magistrate judge's supplemental findings and recommendation and denied the motion. Petitioner appeals.

The Rule 60(b)(6) motion filed by Petitioner Lopez in June 1996 was a second habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997). "Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions." Felker v. Turpin, 101 F.3d 657, 661 (11th Cir.), cert. denied, 117 S.Ct. 451 (1996). Moreover, "the successive petition restrictions contained in the amendments to [28 U.S.C.] § 2244(b) apply to Rule 60(b) proceedings, even where those proceedings seek to amend a judgement that became final before the effective date of the amendments." Id.

Since Petitioner filed his second § 2254 petition after April 24, 1996, the effective date of the AEDPA, he was required to comply with the Act's relevant provisions and obtain prior authorization from this court before filing in the district court. He failed to obtain this authorization. Therefore, the district court lacked jurisdiction to decide his unauthorized second petition, and this court must vacate the district court order. See United States v. Avila-Avila, 132 F.3d 134, 1348-49 (10th Cir. 1997).

However, we will construe Petitioner's notice of appeal and appellate brief as an implied application under 28 U.S.C. § 2244(b)(3)(A) for leave to file a second habeas petition in the district court. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir. 1997).

In his implied application, he argues that the decision in Cooper constituted an intervening change of law, which "affects the district court's . . . denial of his claim of ineffective assistance of counsel" raised in his first § 2254. Id. at 5.

We have thoroughly reviewed the implied application and conclude Petitioner Lopez has failed to make a prima facie showing that satisfies AEDPA's criteria for the filing of a second habeas petition. See 28 U.S.C. § 2244(b)(3)(C). His claim does not rely on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable, § 2244(b)(2)(A). In Cooper, the Supreme Court explained at great length how years of case and statutory law supported its holding. 116 S.Ct. at 1377-80. Thus, the decision did not create a new rule of law. See Hatch v. State of Okl., 92 F.3d 1012, 1016 n. 3 (10th Cir. 1996).

Accordingly, the district court's October 31, 1996 Order disposing of Petitioner's unauthorized second § 2254 petition is VACATED, and the implied application for leave to file a second petition in the district court is DENIED.


Summaries of

Lopez v. Douglas

United States Court of Appeals, Tenth Circuit
Apr 8, 1998
141 F.3d 974 (10th Cir. 1998)

holding that the successive petition restrictions contained in 28 U.S.C. § 2244(b) apply to Rule 60(b) motions

Summary of this case from In re Abdur'rahman

holding a Fed.R.Civ.P. 60(b) motion to vacate the judgment denying an initial § 2254 motion was an uncertified second or successive § 2254 motion

Summary of this case from U.S. v. Magallanes

holding that without authorization from the Court of Appeals "the district court lacked jurisdiction to decide [petitioner's] unauthorized second petition"

Summary of this case from U.S. v. Wall

holding that petitioner's Rule 60(b) motion was an implied application for leave to file a second habeas petition

Summary of this case from Aird v. United States

holding that the petitioner's Rule 60(b) motion was a second habeas petition

Summary of this case from RODWELL v. PEPE

finding a 60(b) motion to vacate the judgment denying an initial § 2254 motion to be an uncertified second or successive § 2254 motion

Summary of this case from U.S. v. Battle

ruling that successive petition restrictions contained in 28 U.S.C. § 2244(b) apply to Rule 60(b) motions

Summary of this case from Moses v. Branker

vacating district court's order for lack of jurisdiction due to petitioner's failure to obtain Tenth Circuit authorization to file a second § 2254 habeas petition

Summary of this case from Jeffries v. Workman

In Lopez v. Douglas, 141 F.3d 974 (10th Cir.1998), we announced a rule that treated all Fed.R.Civ.P. 60(b) motions in habeas proceedings as second or successive habeas petitions for purposes of § 2244(b).

Summary of this case from Spitznas v. Boone

In Lopez v. Douglas, 141 F.3d 974 (10th Cir. 1998), the Tenth Circuit announced a rule that treated all Rule 60(b) motions in habeas proceedings as second or successive habeas petitions for purposes of 28 U.S.C. § 2244(b).

Summary of this case from United States v. Orr

In Lopez v. Douglas, 141 F.3d 974 (10th Cir.1998), the Tenth Circuit Court of Appeals announced a rule that treated all Fed. R. Civ. P. 60(b) motions in habeas proceedings as second or successive habeas petitions for purposes of 28 U.S.C. § 2244(b).

Summary of this case from Henderson v. Parker

In Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998), The Tenth Circuit announced a rule that treats Fed.R.Civ.P. 60(b) motions in habeas proceedings as second or successive habeas petitions for purposes of 28 U.S.C. § 2244(b).

Summary of this case from United States v. Bell

In Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998), the Tenth Circuit held that all Fed.R.Civ.P. 60(b) motions in habeas proceedings were to be treated as second or successive petitions for the purposes of § 2244.

Summary of this case from Jones v. U.S.

In Lopez v. Douglas, 141 F.3d 974 (10th Cir. 1998), the Tenth Circuit Court of Appeals announced a rule that treated all Fed.R.Civ.P. 60(b) motions in habeas proceedings as second or successive habeas petitions for purposes of 28 U.S.C. § 2244(b).Id. at 975.

Summary of this case from Oldham v. White
Case details for

Lopez v. Douglas

Case Details

Full title:ALFONSO ALBERT LOPEZ, Petitioner-Appellant, v. PETER A. DOUGLAS; ATTORNEY…

Court:United States Court of Appeals, Tenth Circuit

Date published: Apr 8, 1998

Citations

141 F.3d 974 (10th Cir. 1998)

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