FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 16, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-3279
v. (D.C. No.2:07-CV-02432-JWL and
2:04-CR-20048-JWL-1)
BARRY D. NELSON, (D. Kan.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Barry Nelson, a federal inmate appearing pro se, seeks to appeal from the
district court’s denial of his motion for reconsideration of the denial of his 28
U.S.C. § 2255 motion. 1 R. Doc. 126 (notice of appeal). Because we conclude
that Mr. Nelson has failed to show that the district court’s ruling on the motion
for reconsideration (concerning his procedural claim) is reasonably debatable, we
will deny a certificate of appealability and dismiss that portion of the appeal. 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Spitznas v.
Boone, 464 F.3d 1213, 1217-18 (10th Cir. 2007). We will affirm the district
court’s order insofar as it dismissed Mr. Nelson’s substantive claims contained in
the motion for reconsideration for lack of jurisdiction. See United States v.
Pedraza, 466 F.3d 932, 934 (10th Cir. 2006).
After a jury trial, Mr. Nelson was convicted of distribution of a mixture and
substance containing cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (counts 1
and 3); maintaining a residence for distribution of cocaine base, 21 U.S.C. §
856(a)(1) (count 2); possession with intent to distribute 5 grams or more of a
mixture or substance containing cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)
(count 4); use of a firearm during and in relation to a drug trafficking crime, 18
U.S.C. § 924(c) (count 5); and possession of a firearm by a felon, 18 U.S.C. §§
922(g)(1) & 924(a)(2). 1 R. Doc. 73 at 2. He was sentenced to a term of 200
months; 140 months on counts 1, 2, 3, and 4; 120 months on count 6, all to run
concurrently, with five years on count 5, to run consecutively, and eight years’
supervised release. 1 R. Doc. 73 at 3-4. The aggregate term of imprisonment was
later reduced to 120 months with 60 months consecutive. Docs. 114, 116. The
judgment was affirmed on direct appeal. United States v. Nelson, 450 F.3d 1201
(10th Cir. 2006). Mr. Nelson sought certiorari which was denied. Nelson v.
United States, 549 U.S. 937 (2006) (table). On September 10, 2007, Mr. Nelson
filed his § 2255 motion claiming ineffective assistance of counsel. The district
court denied the § 2255 motion. United States v. Nelson, Nos. 07-2432-JWL,
04-20048-01-JWL, 2007 WL 4241836 (D. Kan. Nov. 28, 2007).
Apparently, Mr. Nelson did not receive a copy of the order denying the
§ 2255 motion until he inquired in May 2008. Prior to that time, on March 31,
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2008, Mr. Nelson had filed a supplement to his § 2255 motion. On June 13, 2008,
Mr. Nelson filed a motion for reconsideration of the denial of his § 2255 motion.
The district court denied the motion for reconsideration insofar as it contained
procedural claims and dismissed any new claims contained therein. It declined to
transfer the new claims to the circuit as second or successive claims. United
States v. Nelson, Nos. 04-20048-01-JWL, 07-2432-JWL, 2008 WL 4216118 (D.
Kan. Sept. 12, 2008).
On appeal, Mr. Nelson argues that the district court erred in not considering
all the issues contained in his supplemental filing, as urged by his motion for
reconsideration. Fed. R. Civ. P. 60(b) is available to challenge “some defect in
the integrity of the federal habeas proceedings,” but not the merits of the district
court’s order denying the § 2255 motion. Gonzalez v. Crosby, 545 U.S. 524, 532
(2005); see also Spitznas, 464 F.3d at 1215-16. Mr. Nelson argued in his motion
for reconsideration that the district court’s denial of his § 2255 motion was void
because the district court did not consider his supplemental filing. The
supplemental filing contained new substantive claims concerning the validity of
the arrest warrant and the indictment, and reargued ineffective assistance of
counsel.
Even granting that Mr. Nelson did not receive the district court’s order on
his § 2255 motion until many months after the order had been entered, the district
court did not abuse its discretion in denying Mr. Nelson’s motion for
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reconsideration. 1 First, Mr. Nelson’s conviction became final on October 2, 2006
with the denial of certiorari. The one-year limitation period would have expired
on October 2, 2007. See 28 U.S.C. § 2255(f)(1). Thus, any new substantive
claims contained in the March 31, 2008, supplemental filing would have been
time-barred along with those raised in the motion for reconsideration. The
government did raise the one-year limitation problem. 2 1 R. Doc. 122 at 3.
Second, to the extent that the supplemental filing and motion for reconsideration
reargued ineffective assistance claims, those claims are completely without merit.
For example, Mr. Nelson was properly prosecuted on an indictment, Fed. R. Crim.
P. 7(a)(1)(B), and a judge is not required to sign either the indictment or arrest
warrant. Fed. R. Crim. P. 9(b)(1) (clerk signs arrest warrant). Finally, we agree
with the district court that it was not in the interest of justice to transfer any new
(or any for that matter) substantive claims to the court of appeals when it is
apparent that such claims cannot meet the requirements of § 2255(h)(1) or (2).
1
We would reach the same result even if Mr. Nelson’s motion were
considered under Fed. R. Civ. P. 59(e). See Pedraza, 466 F.3d at 933 (holding
that Rule 59(e) motions are subject to the same limitations concerning second and
successive motions as those arising under Rule 60(b)). By the time the district
court denied Mr. Nelson’s § 2255 motion on November 28, 2007, the one-year
limitation period of § 2255(f)(1) had passed. A district court’s decision on either
a Rule 59(e) or Rule 60(b) is reviewed for an abuse of discretion. Butler v.
Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008).
2
The government apparently overlooked Clay v. United States, 537 U.S.
522, 527 (2003), and also argued that the one-year limitation period began with
the issuance of our mandate, rather than the denial of certiorari.
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See In re Cline, 531 F.3d 1249, 1253 (10th Cir. 2008).
We DENY a COA and dismiss the appeal as to the procedural component
of the Rule 60(b) motion; we affirm the district court’s dismissal of the remaining
substantive claims for lack of jurisdiction.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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