                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       October 11, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    H A RO LD D . H O RN SB Y,

                Petitioner-A ppellant.
                                                          No. 05-5019
    v.                                              (D.C. No. 95-CV-940-B)
                                                          (N.D. Okla.)
    EDW ARD EVANS, JR.,

                Respondent-Appellee.



                             OR D ER AND JUDGM ENT *


Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.


         Harold D. Hornsby appeals from the district court’s order denying his

Fed. R. Civ. P. 60(b) motion, brought in this 28 U.S.C. § 2254 habeas case.

W e vacate the district court’s order in part for lack of jurisdiction, deny




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
M r. Hornsby a certificate of appealability (COA), and dismiss the remainder of

his appeal.

                         Factual and Procedural H istory

       In 1990, M r. Hornsby pleaded guilty to larceny from a person and to

larceny of merchandise. In January 1993, he w as tried and convicted of robbery

by fear, for which he received a fifteen-year sentence, and robbery by firearms,

for which he received a twenty-five year sentence.

       After pursuing his state remedies, M r. Hornsby brought a federal habeas

petition in September 1995. The district court denied the petition. M r. Hornsby

appealed. After a remand and an evidentiary hearing, M r. Hornsby again

appealed. W e denied him a certificate of probable cause and dismissed his

appeal. Hornsby v. Kaiser, No. 98-5192, 1999 W L 590746 (10th Cir. Aug. 6,

1999). 1

       During the next three years, M r. Hornsby filed a plethora of motions and

pleadings in the district court, including at least one document construed as a

second habeas petition, along with appeals and other proceedings in this court.

All of these were unsuccessful. The district court informed M r. Hornsby that no

further filings would be accepted from him without prior leave of the court. W e




1
      A “certificate of probable cause” was a predecessor to AEDPA’s COA
requirement.

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upheld the filing restriction imposed by the district court. Hornsby v. Evans,

33 F.App’x 952 (10th Cir. 2002).

      M r. Hornsby’s litigation activity in this case fell quiet for two years. Then,

on M arch 23, 2004, he filed in the district court a motion requesting leave to re-

open the case and leave to file an amended petition for w rit of habeas corpus.

The district court denied the motion. M r. Hornsby appealed. W e denied M r.

Hornsby a COA and dismissed his appeal.

      On November 19, 2004, M r. Hornsby filed in district court a motion to

reconsider, to vacate the filing restriction, and to reopen and continue his habeas

petition, essentially couched in terms of a Rule 60(b) motion. On February 1,

2005, the district court denied this motion as moot, in light of our order

dismissing M r. Hornsby’s most recent appeal. M r. Hornsby appealed from the

district court’s order denying his November 19, 2004 motion, which constitutes

the current appeal in this case.

                                      Analysis

      M r. Hornsby’s 60(b) motion is 139 pages long and was filed despite the

prior imposition of filing restrictions. Although we do not believe the issues

presented in the motion were identical to those previously resolved by this court,

and, hence, we do not follow the district court’s mootness rationale, we conclude

nevertheless that none of the claims in his Rule 60(b) motion may go forward.




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      In his first claim in his Rule 60(b) motion, M r. Hornsby again challenges

the district court’s refusal to allow further filings in this case, which we have

previously upheld. He contends that the order restricting his filings has deprived

him of access to the courts and was entered without notice and without a finding

of vexatious litigiousness ordinarily required in cases where filings are to be

restricted. As the order restricting filings in this case relates only to further

filings in this closed case, his arguments are without merit. See Harper v.

Ashcroft, 156 F.App’x 80, 82 (10th Cir. 2005) (holding that order restricting

further filings in fully litigated and closed case was not denial of due process).

Thus, assuming that a COA is required to appeal from an order of filing

restrictions, we deny him a COA, and would in any event affirm the district

court’s order.

      In his second claim, M r. Hornsby asserts that the federal district court

abused its discretion and denied him due process and his right of access to the

courts by failing to hear and to finally decide issues of exhaustion and procedural

bar in his underlying habeas proceedings. This represents a “true” Rule 60(b)

ground for relief, which the district court could address. See Spitznas v. Boone,

No. 05-6236, 2006 W L 2789868, at *1-*2 (10th Cir. Sept. 29, 2006). W e

nevertheless deny him a COA on this claim, because he fails to show that his

issues concerning exhaustion and procedural bar were not completely litigated

and correctly decided in the district court’s previous orders, see R., docs. 19, 20,

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59, and in our decision denying him a COA on these issues, Hornsby, 1999 W L

590746.

       In his third, fourth, and fifth grounds for relief, M r. Hornsby asserts that he

was denied his right to counsel in the state court proceedings, and that the state

court’s actions and state law deprived him of his constitutional rights. To the

extent that his claims merely reiterate claims asserted in prior filings in his

federal habeas case, we deny him leave to file them, because they were presented

in a prior application and must be dismissed. See 28 U.S.C. § 2244(b)(1). To the

extent they assert new claims, we deny him authorization to file them, because he

has failed to show entitlement to authorization under the standards detailed in

§ 2244(b)(2).

       W e warn M r. Hornsby that attempted further litigation in this court on

these issues, which have already been litigated extensively, may subject him to

filing restrictions in this court.

       To the extent M r. Hornsby’s Rule 60(b) motion constitutes a second or

successive habeas petition, we VACATE the district court’s decision denying it,

and DENY M r. Hornsby leave to file such a petition. W e DENY his application

for a COA to appeal the district court’s denial of his true Rule 60(b) issues, and




                                           -5-
thus DISM ISS the remainder of his appeal. M r. Hornsby’s motion to expand the

record is denied; his motion to proceed in forma pauperis is granted.

                                                   Entered for the Court



                                                   David M . Ebel
                                                   Circuit Judge




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