IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50524 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE RICARDO RUIZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-92-CR-58-ALL-JN -------------------- October 2, 2002

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

José Ricardo Ruiz, federal prisoner #12399-080, has filed a

notice of appeal from an order of the district court construing

his motion under FED. R. CIV. P. 60(b)(3) as a

motion and transferring it to this court to consider whether it

meets the requirements for filing a successive

motion. Ruiz argues that the district court lacked authority to

construe his Rule 60(b)(3) motion as a

motion.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-50524 -2-

Ruiz’s Rule 60(b)(3) motion was an attempt to gain relief

from his drug conspiracy conviction. Therefore, the district

court properly construed it as a § 2255 motion. “[C]ourts may

treat motions that federal prisoners purportedly bring under Rule

60(b), but which essentially seek to set aside their convictions

on constitutional grounds, as § 2255 motions.” United States v.

Rich,

(5th Cir. 1998); see also Fierro v.

Johnson,

(5th Cir. 1999) (“Rule 60(b) motions

should be construed as successive habeas petitions governed by

the AEDPA’s provisions.”)

Because Ruiz’s Rule 60(b)(3)-denominated motion represents a

second or successive § 2255 motion, he must obtain leave of this

court to proceed with a successive motion pursuant to §§ 2255 and

2244(b)(3). See Henderson v. Haro,

(5th Cir.

2002). Ruiz makes no attempt to demonstrate that he satisfies

the requirements for a successive

motion.

Accordingly, we AFFIRM the district court’s transfer and DENY

authorization to file a second or successive

motion. Ruiz’s motion for appointment of counsel is DENIED.

AFFIRMED; AUTHORIZATION TO FILE A SECOND OR SUCCESSIVE

MOTION DENIED; MOTION FOR APPOINTMENT OF COUNSEL

DENIED.