United States v. Haley , 593 F. App'x 824 ( 2014 )


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  •                                                               FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                       December 5, 2014
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                          No. 14-5104
    (D.C. Nos. 4:05-CR-00056-TCK-2 &
    BOBBY WAYNE HALEY, JR.,                             4:14-CV-00331-TCK-FHM)
    (N.D. Okla.)
    Defendant - Appellant.
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
    Bobby Wayne Haley, Jr., a federal prisoner proceeding pro se, seeks a
    certificate of appealability (COA) to challenge the district court’s dismissal of his
    motions under Federal Rule of Civil Procedure 60(b)(4) and (6) as either untimely
    and/or unauthorized second or successive habeas petitions. We deny the request for a
    COA and dismiss this matter.
    Mr. Haley was convicted by a jury in 2007 of one count of conspiracy to
    distribute cocaine and one count of distributing cocaine. The district court sentenced
    him to 262 months’ imprisonment. We affirmed his convictions and sentence on
    *
    This order is not binding precedent except under the doctrines of law of the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.
    appeal. United States v. Haley, 
    529 F.3d 1308
    , 1312 (10th Cir. 2008). Mr. Haley
    then filed a pro se § 2255 motion, which the district court denied. This court denied
    his request for a COA. United States v. Haley, 496 F. App’x 771, 774 (10th Cir.
    2012). In 2013, Mr. Haley unsuccessfully sought authorization from this court to file
    a second or successive § 2255 motion. That unsuccessful attempt was followed by
    two separate requests for authorization in 2014, which we also denied. Prior to filing
    his second or successive requests with this court in 2014, Mr. Haley filed two
    motions in district court for relief under Rule 60(b)(4) and (6), along with a separate
    § 2255 motion.
    In his first Rule 60(b) motion, Mr. Haley raised three arguments of district
    court error in the disposition of his first § 2255 motion: (1) the failure to consider
    all the grounds raised in the motion; (2) the failure to relate claims back; and (3) the
    failure to transfer any untimely claims to this court for authorization. In his second
    Rule 60(b) motion, he added an argument that he was entitled to post-judgment relief
    under Descamps v. United States, 
    133 S. Ct. 2276
     (2013).
    In an opinion and order filed September 23, 2014, the district court dismissed
    the motions. First, the court held that even if Mr. Haley’s motions were “true”
    Rule 60(b) motions, they were not filed within a reasonable time as required by
    Rule 60(c)(1). Alternatively, it held that the motions should be dismissed for lack of
    jurisdiction as second or successive § 2255 claims filed without authorization from
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    this court.1 Mr. Haley now requests a COA from this court in order to appeal these
    rulings. See United States v. Harper, 
    545 F.3d 1230
    , 1233 (10th Cir. 2008) (“[T]he
    district court’s dismissal of an unauthorized [28 U.S.C.] § 2255 motion is a ‘final
    order in a proceeding under section 2255’ such that [28 U.S.C.] § 2253 requires
    petitioner to obtain a COA before he or she may appeal.”). As such, to appeal the
    dismissal of the Rule 60(b) motions, Mr. Haley must obtain a COA. To do so, he
    must 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).
    When analyzing a Rule 60(b) motion, we must “consider each of the issues
    raised in the motion in order to determine whether it represents a second or
    successive petition, a ‘true’ Rule 60(b) motion, or a mixed motion.” Spitznas v.
    Boone, 
    464 F.3d 1213
    , 1224 (10th Cir. 2006). “[A] 60(b) motion is a second or
    successive petition if it in substance or effect asserts or reasserts a federal basis for
    relief from the petitioner’s underlying conviction.” 
    Id. at 1215
    .
    We agree with the district court that Mr. Haley’s Rule 60(b) motions were
    second or successive § 2255 claims because they asserted or reasserted a federal
    basis for relief from his underlying conviction. In his brief, Mr. Haley focuses solely
    1
    The district court also dismissed Mr. Haley’s § 2255 motion in the same
    opinion and order. Mr. Haley appeals only from the dismissal of the Rule 60(b)
    motions.
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    on the court’s ruling as to timeliness and not its determination that the claims were
    second or successive. Mindful of the deference we afford pro se pleadings, see
    Van Deelen v. Johnson, 
    497 F.3d 1151
    , 1153 n.1 (10th Cir. 2007), we have carefully
    examined both motions and conclude they either in substance or effect assert or
    reassert a federal basis for relief from Mr. Haley’s underlying conviction.
    Reasonable jurists could not debate the correctness of the district court’s decision
    that the Rule 60(b) motions were subject to authorization under § 2255(h). See
    Gonzales v. Crosby, 
    545 U.S. 524
    , 532 & n.4 (2005) (holding that a Rule 60(b)
    motion that presents “grounds entitling a petitioner to habeas corpus relief” or “seeks
    to add a new ground for relief” requires authorization).
    Because reasonable jurists could not debate the district court’s conclusion that
    the Rule 60(b) motions were subject to authorization under § 2255(h), Mr. Haley’s
    application for a COA is denied and this matter is dismissed.
    Entered for the Court
    ELISABETH A. SHUMAKER, Clerk
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