Motion challenging defect in prior habeas proceeding, not underlying conviction, is not second habeas motion requiring court of appeals authorization

COLLATERAL REVIEW Peach v. United States, No. 06-3313, ___ F.3d ___ (10th Cir. Nov. 21, 2006)(Kansas). Grant of prisoner’s motion for remand of Rule 60(b) motion that was transferred to court of appeals as second or successive habeas motion. HELD: District court improperly construed prisoner’s motion brought under Rule 60(b)(4) of Federal Rules of Civil Procedure as second or successive habeas motion. Prisoner’s claim, raised in Rule 60 motion that district court failed to rule on ineffective assistance of counsel claim brought under habeas provisions of 28 U.S.C. § 2255, did not challenge merits of district court’s resolution of § 2255 motion, but only alleged defect in integrity of earlier § 2255 proceeding. Accordingly, because Rule 60 claim only challenged integrity of earlier § 2255 proceeding, and not underlying conviction and sentence, it constituted true Rule 60(b) claim and not second or successive § 2255 motion requiring prior authorization of court of appeals. Read the opinion here.