previously failed.”). What the foregoing discussion establishes, I believe, is that a legally significant analogy cannot be drawn between a motion to recall an appellate mandate and a motion or independent action brought under Rule 60(b). None of the motions or independent actions authorized by Rule 60(b) should assert that the petitioner’s underlying criminal conviction or sentence is infirm on the basis of a constitutional claim that was or was not included in the habeas petition the petitioner litigated to final judgment in the district court. If such motions or independent actions present a constitutional claim, they must be dismissed unless the court of appeals has granted the petitioner leave to file the same in district court. The motio .S.App. LEXIS 2644, *3-*4 (10th Cir.1998) (<HOLDING>); McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th
holding that defenses under rule 60b may be waived holding that district courts may properly treat rule 60b motions as successive habeas petitions holding without extended discussion that the peti tioners rule 60b motion was an sshp under aedpa holding without specifying exceptions that rule 60b motions are sshps under aedpa holding that the law in this circuit is that errors of law are cognizable under rule 60b