Claim of Prosecutorial Misconduct in Habeas Proceeding Properly Raised in Rule 60(b) Motion

In re Pickard, -- F.3d --, 2012 WL 2236616 (10th Cir. 6/18/12) (KS) - after defendants were denied relief on their 28 USC § 2255 claims that they were deprived of their rights under Brady and Giglio by the suppression of the informant's criminal and informant background, defendants filed motions in the district court under Fed. R. Civ. P. 60(b) seeking to set aside the judgment in the § 2255 proceedings on the ground that newly discovered evidence showed that the government made a false statement in the § 2255 proceedings (that no agency other than the DEA participated in the investigation leading to defendants' trial on LSD charges) that forestalled the discovery from which they could have established the merits of their underlying claims. While the defendants' claims of Brady/ Giglio violations constituted unauthorized second-or-successive claims, their claims that prosecutorial misconduct in the § 2255 proceedings affected the integrity of those proceedings were properly raised under Rule 60(b). Accordingly, the case is remanded for the district court to address the Rule 60(b) claims.