United States v. Orr , 643 F. App'x 680 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
March 16, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-1239
v. (D. Colo.)
(D.C. Nos. 1:14-CV-00428-LTB and
WILLIAM C. ORR, 1:06-CR-00192-LTB-1)
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
In 2008, Petitioner William C. Orr was convicted of wire fraud, mail fraud,
making false statements, and failure to file tax returns. The judgment of
conviction was affirmed by this court. United States v. Orr, 692 F.3d 1079 (10th
Cir. 2012). Orr filed the instant § 2255 motion on February 18, 2014, raising
multiple claims of ineffective assistance of trial and appellate counsel. The
district court denied relief on November 25, 2014. United States v. Orr, No.
14-00428, 2014 WL 6680350 (D. Colo. 2014). Judgment was entered the same
day.
On March 24, 2015, Orr filed a motion for reconsideration which the
district court construed as seeking relief under both Rule 59(e) and Rule 60(b) of
the Federal Rules of Civil Procedure. In the motion for reconsideration, Orr
asserted he was denied a fair trial because of the alleged bias of the trial court.
He also challenged the partiality of the district court with respect to the
disposition of his § 2255 motion. The district court addressed both claims in a
comprehensive order dated May 13, 2015. The court concluded it lacked
jurisdiction to consider Orr’s claim that judicial bias deprived him of a fair trial
because the claim was successive and Orr did not have permission from this court
to file a second or successive § 2255 motion. See United States v. Torres, 282
F.3d 1241, 1246 (10th Cir. 2002) (holding a district court lacks subject matter
jurisdiction over a successive § 2255 motion if the petitioner has not obtained
leave from the Tenth Circuit to file the motion). As to the bias claim related to
the disposition of the § 2255 motion, the district court denied the claim on the
merits. See Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006) (holding
a “true 60(b) motion . . . challenges a defect in the integrity of the federal habeas
proceeding, provided that such a challenge does not itself lead inextricably to a
merits-based attack on the disposition of a prior habeas petition” (quotation and
citation omitted)).
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Proceeding pro se, Orr is before this court seeking a certificate of
appealability (“COA”) so he can appeal the dismissal of his § 2255 motion. 1 The
notice of appeal Orr filed on July 7, 2015, however, is untimely because his Rule
59(e) motion did not toll the period for him to file the notice of appeal. See Fed.
R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.”); Fed. R. Civ. P. 6(b) (prohibiting a
district court from extending the time to file a Rule 59(e) motion ); Fed. R. App.
P. 4(a)(4)(A)(iv) (extending the time to file a notice of appeal only if a party files
a timely Rule 59 motion); Fed. R. App. P. 4(a)(4)(A)(vi) (providing that a Rule 60
motion filed more than twenty-eight days after entry of final judgment does not
toll the time for filing a notice of appeal from the judgment). Because the notice
of appeal was untimely as to the underlying judgment, we lack jurisdiction to
review the disposition of Orr’s § 2255 motion. Bowles v. Russell, 551 U.S. 205,
214 (2007) (holding that “the timely filing of a notice of appeal in a civil case is a
jurisdictional requirement”). We only have jurisdiction to consider whether Orr
is entitled to a COA permitting him to challenge the district court’s dismissal of
1
Even though Orr seeks a COA permitting him to appeal the denial of his
§ 2255 motion, his appellate brief and his application for a COA do not contain
any substantive arguments pertaining to the district court’s resolution of the
ineffective assistance claims raised in his § 2255 motion. Accordingly, he has
waived any right to appellate review of the claims. United States v. Springfield,
337 F.3d 1175, 1178 (10th Cir. 2003). Regardless of the waiver, however, this
court lacks jurisdiction to consider the ineffective assistance claims because, as
we state below, Orr’s notice of appeal from the denial of his § 2255 motion was
untimely.
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the unauthorized successive claims raised in his motion for reconsideration and
the denial of the remaining claims. See Hawkins v. Evans, 64 F.3d 543, 546 (10th
Cir. 1995) (“[A]n appeal from the denial of a Rule 60(b) motion does not itself
preserve for appellate review the underlying judgment.”); see also Spitznas, 464
F.3d at 1217-18 (“If the district court correctly treated the motion . . . as a true
Rule 60(b) motion and denied it, we will require the movant to obtain a certificate
of appealability (COA) before proceeding with his or her appeal.” (quotation
omitted)).
To receive a COA, Orr must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he
must demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted).
Where a district court dismisses claims on procedural grounds, the petitioner must
also show “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). In evaluating whether Orr
has satisfied his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
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claims. Miller-El, 537 U.S. at 338. Although Orr need not demonstrate his
appeal will succeed to be entitled to a COA, he must “prove something more than
the absence of frivolity or the existence of mere good faith.” Id.
Having undertaken a review of Orr’s application for a COA and appellate
filings, the district court’s orders, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in Miller-El, this court concludes Orr is
not entitled to a COA. No reasonable jurist could disagree with the district
court’s conclusion that Orr’s claims alleging judicial bias at trial are second or
successive or that the claims alleging judicial bias in the resolution of Orr’s
§ 2255 motion fail on the merits. Accordingly, the court’s resolution of Orr’s
motion for consideration is not reasonably subject to debate and the issues Orr
seeks to raise on appeal are not adequate to deserve further proceedings.
This court denies Orr’s request for a COA and dismisses this appeal. Orr’s
request to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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