FILED
United States Court of Appeals
Tenth Circuit
July 6, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RANDALL D. SPEER,
Petitioner–Appellant, No. 11-6067
v. (D.C. No. 5:05-CV-00691-R)
MARTY SIRMONS, Warden, (W.D.Okla.)
Respondent–Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Petitioner, a state prisoner proceeding pro se, seeks a certificate of
appealability to appeal the district court’s denial of his “Motion to Reopen
Original Habeas Petition for the Non-Adjudicated Constitutional Claims.”
Petitioner’s original § 2254 habeas petition was denied by the district court in
2005, and we denied a certificate of appealability as to that denial in 2006. See
Speer v. Sirmons, No. 05-6272 (10th Cir. Feb. 16, 2006). In his motion to reopen,
Petitioner argued there were numerous constitutional violations in his trial and
*
This order is not binding precedent except under the doctrines of law of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.
the federal courts had erroneously failed to consider his habeas claims on the
merits based on incorrect procedural rulings. The district court concluded, to the
extent it had authority to treat Petitioner’s motion to reopen as a Rule 60(b)
motion for relief from the judgment, that the motion should be denied as untimely
and without merit.
After thoroughly reviewing the record and Petitioner’s filings on appeal, we
conclude that reasonable jurists would not debate whether Petitioner’s claims
stated a valid basis for Rule 60(b) relief. See Spitznas v. Boone, 464 F.3d 1213,
1216 (10th Cir. 2006). For substantially the same reasons given by the district
court, we DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal. We GRANT Petitioner’s motion for leave to proceed in
forma pauperis.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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