Whether a federal prisoner's motion for relief under Federal Rule of Civil Procedure 60(b) challenging the merits of a prior habeas corpus decision under 28 U.S.C. § 2255 constitutes an unauthorized successive § 2255 petition barred by the Anti-Terrorism Act's gatekeeping requirements, or whether such a motion may proceed as a collateral attack on the judgment itself

No question identified. : Appellate Case: 22-6186 Document: 010110829752 Date Filed: 03/20/2023 Page: 1 FILED United States Court of Appeal: UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 20, 2023 Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, a Plaintiff Appellee, v. No. 22-6186 (D.C. Nos. 5:19-CV-00939-D & KEN EJIMOFOR EZEAH, 5:16-CR-00029-1) (W.D. Okla.) Defendant Appellant. ORDER Before BACHARACH, PHILLIPS, and EID, Circuit Judges. Appellant’s petition for rehearing is denied. The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, that petition is also denied. Entered for the Court 20 CHRISTOPHER M. WOLPERT, Clerk Appellate Case: 22-6186 Document: 010110809313 Date Filed: 02/07/2023 Page: 1 FILED United States Court of Appeal: UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT February 7, 2023 Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, ems orsour Plaintiff Appellee, v. No. 22-6186 (D.C. Nos. 5:19-CV-00939-D & KEN EJIMOFOR EZEAH, 5:16-CR-00029-D-1) (W.D. Okla.) Defendant Appellant. ORDER DENYING CERTIFICATE OF APPEALABILITY™ Before BACHARACH, PHILLIPS, and EID, Circuit Judges. Ken Ejimofor Ezeah, a federal prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the district court’s dismissal of his motion for relief pursuant to Federal Rule of Civil Procedure 60(b). The district court concluded that the motion was in substance an unauthorized second or successive 28 U.S.C. § 2255 motion and dismissed it for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (absent circuit court authorization, a district court lacks jurisdiction to consider a second or successive § 2255 motion). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we deny a COA and dismiss this matter. * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-6186 Document: 010110809313 Date Filed: 02/07/2023 Page: 2 Background The factual and procedural background of Mr. Ezeah’s conviction, appeal, and original § 2255 proceeding are described in our two prior decisions. See United States v. Ezeah, 738 F. App’x 591, 592-95 (10th Cir. 2018) (Ezeah 1); United States v. Ezeah, No. 21-6165, 2022 WL 2374294, at *1-3 (10th Cir. June 30, 2022) (Ezeah I). We do not repeat that background information here, other than to provide context for our analysis of his application for a COA. We issued our decision in Ezeah IT in June 2022. In July, Mr. Ezeah filed what he captioned as a Rule 60(b) motion asserting that the § 2255 judgment was void because of defects “that compromised the integrity of his original [§] 2255 habeas proceedings.” R., vol. III at 114. On September 14, 2022, the district court dismissed the motion for lack of jurisdiction, concluding it was an unauthorized second or successive § 2255 motion. On September 26, Mr. Ezeah filed another motion captioned as a Rule 60(b) motion alleging defects in the § 2255 proceedings.' Specifically, he claimed the district court failed “to articulate its consideration” of his evidence, including his and his brother’s affidavits, and to explain “the relevance or irrelevance of that... evidence.” Id. at 129. He said the court failed to give him an opportunity to “develop the record with facts .. . outside the record,” and he took issue with the court having based its ruling solely on the record evidence, arguing that it should have obtained affidavits from the "In October 2022, Mr. Ezeah filed a motion that appears to be identical to the one he filed in September 2022. Compare R., vol. III at 129-30, with id. at 137-38