United States v. Harper , 205 F. App'x 655 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 8, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2137
v. (D. New M exico)
ULYSSES HARPER, JR., (D.C. Nos. CIV-06-0007 JC/W PL and
CR-96-220 JC)
Defendant - Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before TA CH A, Chief Circuit Judge, HA RTZ, and TYM KOVICH, Circuit
Judges.
Ulysses S. Harper was convicted in the United States District Court for the
District of New M exico on a charge of conspiracy to possess methamphetamine
with intent to distribute. W e affirmed his conviction on November 16, 1998. See
United States v. Harper, No. 97-2153, 1998 W L 794972. On January 3, 2006, he
filed a motion in the district court entitled “Petitioner’s M otion to Correct
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Sentence Pursuant to Federal Rule of Civil Procedure 60(b)(1)(6) M istake, Fraud,
Inadvertence, Excusable Neglect. Gonzales v. Crosby, ___ U.S. ___, No. 04-
6432, June 23, 2005.” The motion challenges his sentence as contrary to United
States v. Booker, 543 U.S. 220 (2005).
The district court correctly decided that the motion is not a proper
Rule 60(b) motion but rather a motion under 28 U.S.C. § 2255. See United States
v. Nelson, No. 06-6071, 2006 W L 2848113 (10th Cir. Oct. 6, 2006). The court
also correctly noted that
“district courts should not recharacterize a motion purportedly made
under some other rule as a motion made under § 2255 unless (a) the
movant, with knowledge of the potential adverse consequences of
such recharacterization, agrees to have the motion so recharacterized,
or (b) the court finds that, notwithstanding its designation, the
motion should be considered as made under § 2255 because of the
nature of the relief sought, and offers the movant the opportunity to
withdraw the motion rather than have it so recharacterized.”
R. Doc. 2 at 2 (M em. Op. & Order, Feb. 7, 2006) (quoting United States v. Kelly,
235 F.3d 1238, 1242 (10th Cir. 2000)) (further internal quotation marks omitted).
The district court then observed, however, that recharacterization would not
prejudice M r. H arper because his motion was untimely. See United States v.
M artin, 357 F.3d 1198, 1200 (10th Cir. 2004). It therefore recharacterized his
motion as one under § 2255 and dismissed the motion with prejudice as untimely.
M r. Harper can appeal the district court’s ruling only if we grant a
certificate of appealability (COA). See 28 U.S.C. § 2253(c). He is entitled to a
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COA only if reasonable jurists could debate the district court’s ruling. See Slack
v. M cDaniel, 529 U.S. 473, 484 (2000).
No reasonable jurist could debate the district court’s ruling. W e therefore
D EN Y Mr. H arper’s request for a COA and DISM ISS the appeal. W e also DENY
his motion to proceed in form a pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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