|NELSON GIRALDO PALACIO,||
In the district court, Mr. Palacio asked that his motion be treated as a motion under Fed. R. Civ. P. 60(b), and not as a petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.(1) The district court ruled that the relief Mr. Palacio sought was not available under Fed. R. Civ. P. 60(b), and it dismissed his motion without prejudice.
We decline to decide whether Mr. Palacio's motion should be subject to review as a second or successive § 2255 petition as opposed to a Rule 60(b) motion because, in either case, Mr. Palacio has filed his motion in an inappropriate court. A second or successive § 2255 petition must be authorized by the "appropriate court of appeals," which, in this case, would be the Ninth Circuit. See 28 U.S.C. § 2244(b)(3)(A). A motion under Fed. R. Civ. P. 60(b) must be filed in the court rendering judgment, which, in this case, would be the District Court for the Central District of California. See Cessna Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444 (10th Cir. 1983); see also 12 James Wm. Moore et al., Moore's Federal Practice § 60.60 (3d ed. 2006). Accordingly, we must affirm the district court's order dismissing Mr. Palacio's motion without prejudice. Appellant's motion for leave to proceed on appeal in forma pauperis is denied and appellant is directed to pay the filing fee forthwith.
Entered for the Court
Paul J. Kelly, Jr.
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
2. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1. A § 2255 petition must be filed in the court which imposed the sentence. See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Furthermore, because Mr. Palacio already filed two § 2255 petitions, any subsequent petition would have to be authorized by the appropriate circuit court of appeals under AEDPA. See Leonard v. United States, 383 F.3d 1146, 1147 (10th Cir. 2004) (citing 28 U.S.C. §§ 2244(b)(3)(A) and 2255); United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998) (same).