FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 8, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3175
(D.C. Nos. 6:17-CV-01169-JTM &
TYRONE L. ANDREWS, 6:07-CR-10221-JTM-2)
(D. Kan.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
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Tyrone L. Andrews filed a motion in the district court, purportedly under Federal
Rule of Civil Procedure 60(b). The district court construed the motion as an
unauthorized second or successive motion to vacate his sentence under 28 U.S.C. § 2255
and dismissed it for lack of jurisdiction. Proceeding pro se, Andrews seeks to appeal the
district court’s ruling. We deny a certificate of appealability (COA) and dismiss this
proceeding.
Background
In 2010, Andrews pleaded guilty to 86 counts of drug trafficking and related
offenses and was sentenced to 20 years in prison. His plea agreement included a waiver
*
This order is not binding precedent except under the doctrines of law of the case,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.
of his rights to appeal and to collaterally attack his conviction or sentence. Even so, he
filed a direct appeal, which was dismissed on waiver grounds. He also moved to vacate
his sentence under § 2255; however, the district court denied his motion, and this court
denied a COA when Andrews sought to appeal the district court’s ruling. See United
States v. Andrews, 471 F. App’x 824, 829 (10th Cir. 2012). This court later denied a
motion for authorization to file a second or successive § 2255 motion as well.
Seven years after his guilty plea, Andrews filed a “motion to void the criminal
judgment” against him under Rule 60(b)(4). He challenged the district court’s
jurisdiction over him, alleging that 18 U.S.C. § 3231 (which confers original jurisdiction
on district courts) is void. In addition, he asked the district court to vacate his conviction
and sentence on the grounds that (1) he received ineffective assistance of counsel during
the plea bargaining process and at sentencing and (2) the prosecutor and judge engaged in
misconduct. Looking at the relief sought, the district court construed the Rule 60(b)
motion as a § 2255 motion and held that it was second or successive and not authorized
by this court. It then dismissed the motion for lack of jurisdiction.
Discussion
Andrews must obtain a COA before he can appeal the dismissal of an
unauthorized successive § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). This requires
“a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
We liberally construe his pro se application for a COA, see Hall v. Scott, 292 F.3d 1264,
1266 (10th Cir. 2002), but we do not assume the role of advocate, see Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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Because the district court’s ruling rested on procedural grounds, not on the merits,
Andrews must show both “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). We need only consider
the second part of this standard to conclude Andrews has not met this burden.
Rule 60(b) cannot be used to “circumvent[] AEDPA’s requirement that a new
claim be dismissed unless it relies on either a new rule of constitutional law or newly
discovered facts.” Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). “[A] ‘true’ 60(b)
motion . . . either (1) challenges only a procedural ruling of the habeas court which
precluded a merits determination of the habeas application; or (2) challenges a defect in
the integrity of the federal habeas proceeding.” Spitznas v. Boone, 464 F.3d 1213,
1215-16 (10th Cir. 2006) (citation omitted). By contrast, “[a] § 2255 motion is one
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” United States v. Nelson,
465 F.3d 1145, 1148 (10th Cir. 2006) (internal quotation marks omitted). Regardless of
how a movant characterizes a post-judgment motion, it is treated as a § 2255 motion if it
“asserts or reasserts a federal basis for relief” from the movant’s conviction or sentence.
In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009) (per curiam) (internal quotation
marks omitted).
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Here, Andrews “move[d] to vacate both his conviction and sentence on the
grounds the sentence was imposed in violation of the Constitution or laws of the United
States, that the court was without jurisdiction to impose the sentence and that this was a
direct result of the denial of Sixth Amendment rights to effective assistance of counsel,
during the pre-trial plea process, and at sentencing.” R., Vol. IV at 106. Given the
substance of this request, reasonable jurists could not debate that the district court
properly construed the motion as an unauthorized successive § 2255 motion. Andrews
did not challenge a procedural ruling of the habeas court that precluded a merits review
of a habeas application, nor did he challenge a defect in the integrity of his habeas
proceeding.
Conclusion
Because reasonable jurists could not debate the correctness of the district court’s
procedural ruling, and because Andrews has not presented any argument challenging the
court’s further determination that his § 2255 motion was second or successive and
unauthorized, we deny Andrews’ application for a COA and dismiss the proceeding. We
grant Andrews’ motion to proceed on appeal without prepayment of costs or fees, but
remind him of his obligation to make partial payments until the filing fee has been paid in
full. Because 28 U.S.C. § 1915(a)(1) allows us to excuse only prepayment of fees, he
remains obligated to pay all filing and docketing fees to the clerk of the district court.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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