Appellate Case: 23-1301 Document: 010111037305 Date Filed: 04/24/2024 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 24, 2024
_________________________________
Christopher M. Wolpert
Clerk of Court
DELMART E.J.M. VREELAND, II,
Petitioner - Appellant,
v. No. 23-1301
(D.C. No. 1:14-CV-02175-PAB)
DAVID ZUPAN; THE ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, KELLY, and PHILLIPS, Circuit Judges.
_________________________________
Delmart E.J.M. Vreeland, II, a Colorado prisoner, seeks a certificate of
appealability (COA) to appeal from the dismissal of his motion under Rule 60(b)(6) of
the Federal Rules of Civil Procedure, which the district court deemed to be an
unauthorized second or successive 28 U.S.C. § 2254 application. We deny a COA and
dismiss this matter.
A Colorado jury convicted Mr. Vreeland of offenses including sexual exploitation
of a child, sexual assault, and contributing to the delinquency of a minor. After
*
This order is not binding precedent except under the doctrines of law of the case,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.
Appellate Case: 23-1301 Document: 010111037305 Date Filed: 04/24/2024 Page: 2
unsuccessfully seeking relief from his conviction in the Colorado courts, he
unsuccessfully pursued a federal habeas application under 28 U.S.C. § 2254. See
Vreeland v. Zupan, 906 F.3d 866, 883 (10th Cir. 2018), cert. denied, 139 S. Ct. 1586
(2019). Relevant to this case, Mr. Vreeland subsequently filed a motion in the district
court under Rule 60(b)(6) of the Federal Rules of Civil Procedure, seeking relief from
judgment based on an allegation of extraordinary circumstances—namely, that the
district court’s habeas proceedings had been corrupted by the absence of pleadings the
state court had fraudulently omitted from the record. The district court determined the
motion was an unauthorized second or successive § 2254 application and dismissed it.1
He now seeks a COA to challenge the district court’s dismissal.
This matter may not proceed unless we grant a COA, see 28 U.S.C.
§ 2253(c)(1)(A), and we may not do so unless Mr. Vreeland “ma[kes] a substantial
showing of the denial of a constitutional right,” § 2253(c)(2). This means he “must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). And, because the district court dismissed his Rule 60(b)(6) motion on
1
Mr. Vreeland also filed several other motions, including a Rule 60(b)(4) motion
captioned “Motion for Relief and to Vacate Judgment Pursuant to Fed. R. Civ. P. 60(b)”;
a motion for release on bail pending his Rule 60 motions; a motion to take judicial notice
of certain evidence; and a “Motion for Release on Recognizance Bail.” App. 54. The
district court denied each of these motions on their merits. His Opening Brief and request
for a COA, however, are limited to the district court’s dismissal of his Rule 60(b)(6)
motion.
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procedural grounds, he must also show that “jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id.
In determining whether the district court was correct in its procedural ruling that
Mr. Vreeland’s motion is actually an unauthorized second or successive § 2254
application, we look to Gonzalez v. Crosby, 545 U.S. 524 (2005). In Gonzalez, the
Supreme Court provided examples of Rule 60(b) motions that should be treated as second
or successive § 2254 applications. These include motions “seek[ing] leave to present
newly discovered evidence in support of a claim previously denied.” Id. at 531 (citation
and internal quotation marks omitted). Here, as Mr. Vreeland has argued, because of the
missing pleadings he “did not have the evidence needed to raise viable arguments relating
to jurisdiction in the habeas petition.” Opening Br. at 9. Because his own
characterization of the motion confirms that he seeks to present newly discovered
evidence in support of a previously denied claim, no reasonable jurist would debate the
district court’s procedural determination that the motion was an unauthorized second or
successive § 2254 application.
Mr. Vreeland further argues, however, that because his motion alleges fraud it is a
“true” Rule 60(b) motion, not an unauthorized § 2254 application. In Spitznas v. Boone,
464 F.3d 1213 (10th Cir. 2006), we acknowledged that a motion asserting fraud in the
federal habeas proceeding “may . . . constitute a true [Rule] 60(b) motion.” Id. at 1216.
But we also explained that such a motion “requires a more nuanced analysis” that turns
on the type of fraud alleged. Id. “If the alleged fraud on the court relates solely to fraud
perpetrated on the federal habeas court, then the motion will be considered a true 60(b)
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motion.” Id. On the other hand, “[i]f the fraud on the habeas court includes (or
necessarily implies) related fraud on the state court . . . then the motion will ordinarily be
considered a second or successive petition because any ruling would inextricably
challenge the underlying conviction proceeding.” Id. In Mr. Vreeland’s case, it is clear
the alleged fraud does not relate solely to the proceedings before the federal habeas court.
He asserts, for example, that on direct appeal his state appellate counsel did not receive
the allegedly missing pleadings. Accordingly, Mr. Vreeland’s fraud allegations do not
render his motion a true Rule 60(b) motion under Spitznas.
Because Mr. Vreeland has not shown that reasonable jurists would find it
debatable whether the district court was correct in its ruling that his Rule 60(b)(6) motion
was an unauthorized second or successive § 2254 application, we deny a COA and
dismiss this matter.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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