FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 23, 2017
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Elisabeth A. Shumaker
Clerk of Court
STEPHEN E. MCCOY,
Petitioner - Appellant,
v. No. 17-6032
(D.C. No. 5:15-CV-01376-R)
R. BYRD, Warden, CCF, (W.D. Okla.)
Respondent - Appellee.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
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Stephen McCoy, a state prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254
habeas petition and his Rule 60(b) motion. We deny a COA and dismiss the appeal.
I
In 2013, McCoy was convicted of conspiracy to commit a felony, robbery with
a dangerous weapon, and kidnapping. His convictions were affirmed on direct
appeal. McCoy subsequently sought habeas relief in federal court. The district court
dismissed the petition as untimely. Several months later, McCoy submitted a motion
*
This order is not binding precedent, except under the doctrines of law of the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.
to reopen the case under Fed. R. Civ. P. 60(b). The district court denied that motion.
McCoy now seeks a COA from this court.
II
As an initial matter, McCoy failed to seek timely appellate review of the denial
of his habeas petition. Under Fed. R. App. P. 4(a)(1)(A), a defendant must file a
notice of appeal within thirty days of the entry of judgment. The district court
dismissed McCoy’s habeas petition and entered final judgment on April 18, 2016.
McCoy took no further action until July 8, 2016, when he filed a Rule 60(b) motion.
Because that motion was filed more than 28 days after the district court entered
judgment, it did not toll the time to file a notice of appeal. See Fed. R. App. P.
4(a)(4)(A)(vi). Accordingly, McCoy’s notice of appeal, which was filed on January
30, 2017, is untimely as to the denial of his habeas petition, and we lack jurisdiction
to review that order. See United States v. Ceballos-Martinez, 387 F.3d 1140, 1143
(10th Cir. 2004).
McCoy’s notice of appeal is timely as to the denial of his Rule 60(b) motion.1
However, he may not appeal that order without a COA. Spitznas, 464 F.3d at 1217-
18. We will issue a COA only if McCoy shows “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and . . . whether the district court was correct in its procedural ruling.” Id. at
1
Although the district court did not make an express finding, we conclude it
properly treated McCoy’s motion as a “true” Rule 60(b) motion, rather than a second
or successive habeas petition. The motion “challenges only a procedural ruling of the
habeas court which precluded a merits determination of the habeas application.”
Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006).
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1225 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “We review a district
court’s denial of a Rule 60(b) motion for an abuse of discretion.” Davis v. Kan.
Dep’t of Corr., 507 F.3d 1246, 1248 (10th Cir. 2007) (quotation omitted).
In his initial habeas petition, McCoy argued that he was entitled to equitable
tolling because the prison was on lockdown several times in 2015. The district court
rejected McCoy’s argument because he failed to show how he diligently pursued his
claims in the six months between the date when his conviction became final and the
date of the first lockdown, or between the various lockdown periods. See Miller v.
Marr, 141 F.3d 976, 978 (10th Cir. 1998). In his Rule 60(b) motion, McCoy
provided details to support his claim for equitable tolling. However, Rule 60(b) is
not an appropriate vehicle “to reargue an issue previously addressed by the court
when the motion merely advances new arguments, or supporting facts which were
available at the time of the original motion.” Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). McCoy does not provide any reason for his failure to
offer this evidence in his original habeas petition. Thus, reasonable jurists could not
debate that the district court acted within its discretion in denying McCoy’s Rule
60(b) motion.
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III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
McCoy’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
4