Appellate Case: 22-7031 Document: 010110757937 Date Filed: 10/25/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 25, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ROBERT D. CARTER,
Petitioner - Appellant,
v. No. 22-7031
(D.C. No. 6:19-CV-00243-RAW-KEW)
DEON CLAYTON, Warden, (E.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Robert Carter, a state prisoner proceeding pro se,1 seeks a certificate of
appealability (COA) to appeal an order denying his motion under Federal Rule of Civil
Procedure 60(b)(1) to set aside a judgment dismissing his 28 U.S.C. § 2254 petition as
untimely. For the reasons below, we deny Carter’s request and dismiss this matter.
Background
Carter filed his § 2254 petition in July 2019, asserting various constitutional
challenges to his Oklahoma convictions for possessing child pornography. The State
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed.
R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
1
“Because [Carter] is pro se, we liberally construe his filings, but we will not act
as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
Appellate Case: 22-7031 Document: 010110757937 Date Filed: 10/25/2022 Page: 2
moved to dismiss the petition as untimely, arguing that Carter filed it more than one year
after his convictions became final in February 2016. See 28 U.S.C. § 2241(d)(1). The
district court agreed. So in late November 2020, it dismissed the petition, declined to
issue a COA, and entered judgment for the State. Carter then moved for reconsideration
under Federal Rule of Civil Procedure 59(e); the district court denied that motion in
August 2021.
Carter then made his first trip to this court, seeking a COA to challenge the district
court’s ruling that the one-year statute of limitations barred his petition. See 28 U.S.C.
§ 2253(c)(1)(A). Earlier this year, we denied Carter’s COA request and dismissed the
case. Carter v. Clayton, No. 21-7049, 2022 WL 484033, at *1 (10th Cir. Feb. 17, 2022).
In doing so, we rejected Carter’s argument—renewed from the district court—that his
petition was timely under § 2241(d)(1)(B) and (D) because he filed it within one year of a
state prosecutor belatedly disclosing police reports that revealed the factual basis for a
Fourth Amendment claim asserted in his petition. See id. at *1, *3–4.
In June 2022, Carter reasserted that argument in a Rule 60(b)(1) motion asking the
district court to set aside its November 2020 dismissal order. The district court denied
Carter’s motion as untimely after determining that he did not file it within “a year after
the entry of the judgment,” as required by Rule 60(c)(1). Carter appeals.
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Analysis
In his second trip to this court, Carter requests a COA to appeal the order denying
his Rule 60(b)(1) motion.2 We may grant that request only if Carter shows that
reasonable jurists could debate both (1) the validity of the underlying constitutional
claims asserted in his habeas petition and (2) the district court’s procedural ruling
denying his Rule 60(b)(1) motion to set aside the judgment dismissing his petition. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Buck v. Davis, 137 S. Ct. 759, 775 (2017)
(applying Slack standard to habeas petitioner’s Rule 60(b) motion). We need not address
the constitutional question if we conclude that reasonable jurists would not debate the
district court’s procedural ruling. Slack, 529 U.S. at 485.
Carter argues that reasonable jurists could disagree with the district court’s
procedural ruling because the district court based it on a mistaken view that the Rule
60(b)(1) motion was untimely. See Fed. R. Civ. P. 60(c)(1) (requiring parties to file Rule
60(b)(1) motions “no more than a year after the entry of the judgment or order or the date
of the proceeding”). Specifically, he contends that the one-year deadline for filing such a
motion began not when the district court first entered judgment in November 2020 (as the
district court concluded), but when it denied his Rule 59(e) reconsideration motion in
2
Our precedents require a COA to appeal an order denying a Rule 60(b) motion in
a habeas case. Spitnas v. Boone, 464 F.3d 1213, 1217–18 (10th Cir. 2006). Initially, the
district court did not consider whether to grant a COA, so when Carter appealed, we
abated the appeal and remanded for consideration of that issue. The district court
ultimately declined to issue a COA, and we have since lifted the abatement.
3
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August 2021. As a result, Carter says, his Rule 60(b)(1) motion was timely because he
filed it in June 2022—more than two months before the August 2022 deadline.
But even if the district court’s Rule 60(b) timeliness analysis is debatable, as
Carter suggests, its ultimate decision to deny his Rule 60(b)(1) motion is not. See Davis v.
Roberts, 425 F.3d 830, 834 (10th Cir. 2005) (noting our discretion to deny COA on any
ground supported by the record). In the motion, Carter mentioned no “mistake,
inadvertence, or excusable neglect” that would support setting aside the district court’s
decision to dismiss his § 2254 petition on statute-of-limitations grounds. Fed. R. Civ. P.
60(b)(1). Instead, he simply reasserted an argument the district court rejected in its
dismissal order—that he timely filed the petition within one year of receiving the police
reports that revealed the factual basis for his Fourth Amendment claim.3 Because “Rule
60(b) relief is not available to allow a party merely to reargue issues previously addressed
[by] the court,” the district court here could not have granted Carter’s motion even if he
filed it on time. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006);
see also Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991) (explaining
that Rule 60(b) relief is inappropriate when motion “reiterate[s] the original issues” or
“argu[es] that the district court misapplied the law or misunderstood [a party’s]
position”). For this reason, no reasonable jurist could debate the district court’s decision
to deny Carter’s Rule 60(b)(1) motion, whether or not Carter timely filed it.
3
The motion also repeated a related argument, which the district court likewise
rejected in its earlier dismissal order, that the statute of limitations should be equitably
tolled based on the state prosecutor’s purported failure to timely disclose the police
reports.
4
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Conclusion
Because Carter fails to show that reasonable jurists could debate the district
court’s procedural ruling, we deny his COA request and dismiss this appeal. See Slack,
529 U.S. at 484.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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