FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 31, 2013
Elisabeth A. Shumaker
Clerk of Court
ROBERT EARL JACKSON,
Petitioner−Appellant,
v. No. 12-5204
(D.C. No. 4:04-CV-00195-CVE-FHM)
REGINALD HINES, Warden, (N.D. Okla.)
Respondent−Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, Chief Judge, TYMKOVICH, and MATHESON, Circuit Judges.
Petitioner Robert Earl Jackson, a state prisoner proceeding pro se, seeks to
appeal the district court’s order dismissing his post-judgment motion pursuant to
Fed. R. Civ. P. 60(b) for lack of jurisdiction. We deny him a certificate of
appealability (COA) and dismiss this proceeding.
Mr. Jackson was convicted in state court by a jury of two counts of assault and
battery upon a police officer and one count of unlawful possession of a controlled
drug. He was sentenced to two ten-year terms of imprisonment on the assault-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This order is not binding precedent except under the doctrines of law of the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.
battery counts and to twelve years’ imprisonment on the drug charge. The state court
ordered that all of his sentences were to be served consecutively.
In 2004, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.
After permitting him to amend the petition numerous times, the district court
eventually denied it. Mr. Jackson appealed to this court. We denied him a COA and
dismissed his appeal. Jackson v. Hines, 268 F. App’x 773, 779 (10th Cir. 2008). The
Supreme Court denied certiorari.
Two and one-half years later, Mr. Jackson filed a motion for relief under
Fed. R. Civ. P. 60(b) together with another § 2254 petition. On October 6, 2011, the
district court dismissed both the Rule 60(b) motion and the § 2254 petition, reasoning
that each of them constituted a second or successive § 2254 petition filed without
prior authorization from this court. Mr. Jackson did not appeal from this dismissal.
Instead, he filed three more post-judgment motions: a motion to alter or amend the
district court’s judgment, which the district court dismissed on December 19, 2011;
another Rule 60(b) motion, which the district court dismissed on October 17, 2012;
and a motion to alter or amend the October 17, 2012 dismissal, which the district
court denied on November 7, 2012.
Our first task is to determine which of the many orders entered by the district
court is before us on appeal. On November 26, 2012, Mr. Jackson filed a notice of
appeal to this court “from the final judgment entered against him in this action.”
R. at 173. This notice of appeal thus purported to appeal only from a single “final
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judgment.” It was timely to appeal from the dismissal of his latest Rule 60(b) motion
along with the denial of his motion to alter or amend. See Fed. R. App. P.
4(a)(4)(A)(iv) (timely motion to alter or amend judgment causes time to file appeal to
run from order disposing of motion); Venable v. Haislip, 721 F.2d 297, 299 (10th Cir.
1983) (per curiam) (timely-filed motion to alter or amend tolled time to appeal from
denial of Rule 60(b) motion). It did not represent a timely notice of appeal, however,
from earlier orders entered in the case. We therefore consider only Mr. Jackson’s
appeal from the dismissal of his latest Rule 60(b) motion and from the denial of his
motion to alter or amend.
To pursue his appeal from either order, Mr. Jackson must obtain a COA.
28 U.S.C. § 2253(c)(1)(A). We may grant him a COA to appeal the dismissal of his
Rule 60(b) motion only if reasonable jurists could debate whether (1) the district
court’s jurisdictional ruling was correct and (2) the allegations in the habeas
application are sufficient to state a valid constitutional claim. See Slack v. McDaniel,
529 U.S. 473, 484 (2000).
The district court dismissed Mr. Jackson’s Rule 60(b) motion because it
determined that the motion constituted “a substantive challenge to the validity of his
Judgment and Sentence entered in state court” and therefore “qualifies as a
successive petition for writ of habeas corpus filed without prior authorization from
the Tenth Circuit Court of Appeals.” R. at 162. A prisoner’s post-judgment motion
should be treated like a second or successive § 2254 motion if it asserts or reasserts
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claims of error involving the prisoner’s conviction. See Gonzalez v. Crosby,
545 U.S. 524, 530-32, 538 (2005); Spitznas v. Boone, 464 F.3d 1213, 1215-16
(10th Cir. 2006). “That is not the case, however, when a Rule 60(b) motion
attacks . . . some defect in the integrity of the federal habeas proceedings.” Gonzalez,
545 U.S. at 532. In that case, the motion is a “true” Rule 60(b) motion, and should
not be treated as a second or successive petition. See Spitznas, 464 F.3d at 1215-16.
In Spitznas, this court provided “[s]ome examples of Rule 60(b) motions that
should be treated as second or successive habeas petitions because they assert or
reassert a federal basis for relief from the underlying conviction.” Id. at 1216. These
include
a motion seeking to present a claim of constitutional error omitted from
the movant’s initial habeas petition; a motion seeking leave to present
newly discovered evidence in order to advance the merits of a claim
previously denied; or a motion seeking vindication of a habeas claim by
challenging the habeas court’s previous ruling on the merits of that
claim.
Id. (internal brackets, citations, and quotation marks omitted).
Notwithstanding the arguments Mr. Jackson now makes in his combined
opening brief and application for COA, the assertions in his Rule 60(b) motion all
appear to fall within one or more of these categories. See R. at 107-36. In light of
this fact, he fails to demonstrate that reasonable jurists could debate the correctness
of the district court’s conclusion that his Rule 60(b) motion was in fact an
unauthorized second or successive § 2254 petition. Also in light of the foregoing, the
district court did not err in denying the motion to alter or amend.
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We therefore deny Mr. Jackson a COA and dismiss this appeal. We also deny
his application to proceed in forma pauperis, and order him to remit the full amount
of the filing fee.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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