Gary Ebeck v. United States ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3459
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Gary A. Ebeck, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: November 16, 1999
Filed: November 23, 1999
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Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Gary A. Ebeck received a 240-month sentence after pleading guilty to
kidnapping and firearm charges. In June 1996, Ebeck filed a 28 U.S.C. § 2255 motion
to vacate, set aside, or correct his sentence, which the district court denied on the
merits. This court denied Ebeck's request for a certificate of appealability. In April
1997, Ebeck filed a second § 2255 motion, raising the same claims presented in his first
motion and adding two new claims. The district court denied Ebeck's second motion
because Ebeck failed to obtain the certification from this court required before filing
a second § 2255 motion. This court again denied Ebeck's request for a certificate of
appealability. In May 1998, Ebeck filed a Federal Rule of Civil Procedure 60(b)
motion, raising "claims previously stated in a § 2255 motion." (Ebeck's Reply Br. at
1). The district court construed the Rule 60(b) motion as a successive § 2255 motion
and denied the motion, stating Ebeck did not receive the required certification from this
court before filing his successive motion.
Ebeck appeals, contending the district court should not have treated his Rule
60(b) motion as a successive § 2255 motion. We disagree. A Rule 60(b) motion
seeking relief from the denial of a § 2255 motion and raising claims of a postconviction
relief nature, as Ebeck's does, should be construed as a successive § 2255 motion. See
Guinan v. Delo, 5 F.3d 313, 316-17 (8th Cir. 1993); Blair v. Armontrout, 976 F.2d
1130, 1134 (8th Cir. 1992). A successive § 2255 motion requires certification by this
court before filing, see 28 U.S.C. §§ 2244(b)(3)(A), 2255 (Supp. II 1996), and the
district court properly denied Ebeck's motion because Ebeck did not comply with this
requirement, see United States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998), cert. denied,
119 S. Ct. 1156 (1999); Felker v. Turpin, 101 F.3d 657, 660-61 (11th Cir. 1996) (per
curiam).
We thus affirm the district court's denial of Ebeck's Rule 60(b) motion. See 8th
Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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