United States v. Washington

MEMORANDUM **

Federal prisoner Richard Washington appeals pro se the January 14, 2003 order *723 by the district court rejecting for filing his motion pursuant to Federal Rule of Civil Procedure 60(b) and Federal Rule of Criminal Procedure 12(b) (“Rule 60(b) motion”) challenging the denial of his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

Because the factual predicate for Washington’s Rule 60(b) motion also states a claim for a successive § 2255 motion under 28 U.S.C. § 2255 , it is properly treated as a second or successive § 2255 motion. See Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir.1998). Because Washington had not obtained authorization from this court to consider a successive § 2255 motion, the district court was without jurisdiction to hear his Rule 60(b) motion. See 28 U.S.C. §§ 2244 (b)(3)(A) & 2255; United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998) (failure to request the requisite authorization to file a second or successive § 2255 motion deprives the district court of jurisdiction).

To the extent that the notice of appeal filed in district court can be construed as a request for authorization to file a…