United States v. Tinajero-Porras , 670 F. App'x 657 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 8, 2016
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 16-6253
v. (D.C. Nos. 5:16-CV-00890-R &
5:06-CR-00115-R-1)
JESUS ADOLFO TINAJERO-PORRAS, (W.D. Okla.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
Jesus Adolfo Tinajero-Porras was convicted of charges arising from a
conspiracy to possess with intent to distribute cocaine and marijuana. After an
unsuccessful appeal, Tinajero-Porras filed a motion for relief under 28 U.S.C.
§ 2255, which the district court denied. Nearly seven years later, Tinajero-Porras
filed a “motion for relief . . . pursuant to [Fed. R. Civ. P.] 60(b).” R. Vol. 1 at 46.
The district court construed the motion as an unauthorized successive § 2255 motion
and dismissed it for lack of jurisdiction. Tinajero-Porras requests a certificate of
*
This order is not binding precedent except under the doctrines of law of the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.
appealability (COA). For the following reasons, we deny his request and dismiss this
matter.
Tinajero-Porras 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). The district
court disposed of Tinajero-Porras’ motion on procedural grounds, so in order to
obtain a COA Tinajero-Porras must show that jurists of reason would find it
debatable whether the district court’s procedural ruling was correct. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). A court should construe a motion for relief
under Fed. R. Civ. P. 60(b) as a second or successive § 2255 motion if it seeks to add
a new claim, which includes attacking the “court’s previous resolution of a claim on
the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (emphasis omitted).
“Conversely, . . . 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) (citations
omitted).
Tinajero-Porras argues his motion for relief under Fed. R. Civ. P. 60(b) was a
“true” 60(b) motion. According to Tinajero-Porras, he did not seek to add a new
claim or attack the district court’s resolution of his prior § 2255 motion on the merits,
but instead asked the court to rule on a claim in his original § 2255 motion that it had
failed to address. There are two problems with this argument. First, the district court
-2-
specifically rejected the claim Tinajero-Porras argues it missed—that his attorney
was ineffective for failing to object to statements in the presentence report—in its
September 15, 2009, order. See United States v. Tinajero-Porras, No. CR-06-115-R,
Order at 4 (W.D. Okla. Sept. 15, 2009). Second, much of Tinajero-Porras’ 60(b)
motion is devoted to rearguing the merits of his ineffective assistance claim. The
district court therefore properly construed it as an unauthorized successive § 2255
motion. Because reasonable jurists could not debate this procedural ruling, we deny
Tinajero-Porras’ request for a COA.
We grant Tinajero-Porras’ motion to proceed on appeal without prepayment of
costs or fees. But 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
-3-