                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 June 29, 2011
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                             Nos. 10-2277 & 11-2021
                                             (D.C. Nos. 1:10-CV-00030-JB-WDS
    LEOBARDO MORALES-RAMIREZ,                      & 1:05-CR-00920-JB-2)
                                                          (D. N.M.)
                Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
Judges.



         Leobardo Morales-Ramirez has filed a combined application for a

certificate of appealability (COA) to appeal the district court’s dismissal of his

28 U.S.C. § 2255 motion as untimely (case no. 10-2277) and to appeal the district

court’s dismissal of his Fed. R. Civ. P. 60(b) motion for lack of jurisdiction (case

no. 11-2021). We deny Mr. Morales-Ramirez’s request for a COA in both cases.


*
       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 This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                     Background

       Mr. Morales-Ramirez was convicted after a jury trial of conspiring to

possess and distribute over one kilogram of heroin and of possessing with an

intent to distribute over one kilogram of heroin. He was sentenced to 240

months’ imprisonment. On December 27, 2007, we affirmed his convictions. See

United States v. Morales-Ramirez, 260 F. App’x 25, 27 (10th Cir. 2007).

       On January 11, 2010, more than two years after we affirmed his

convictions, Mr. Morales-Ramirez filed for relief under § 2255. The district court

entered an order directing Mr. Morales-Ramirez to show cause why his motion

should not be dismissed as untimely as it was filed after the expiration of the

one-year limitation period in § 2255. In response, Mr. Morales-Ramirez argued

that the one-year limitation should be equitably tolled under the “actual innocence

exception,” R. at 26, and because of a loss of subject-matter jurisdiction by the

district court resulting from constitutional errors in the presentence investigation

report (PSIR), id. at 27. The district court concluded that Mr. Morales-Ramirez

failed to establish the timeliness of his § 2255 motion and dismissed the motion.

Id. at 52.

       Mr. Morales-Ramirez next filed a Rule 60(b) motion, arguing that the

district court abused its discretion in dismissing his § 2255 motion and asking the

court to review his § 2255 motion on the merits. The district court determined




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that the 60(b) motion constituted an unauthorized second-or-successive § 2255

motion and dismissed it for lack of jurisdiction.

                                      Discussion

      Mr. Morales-Ramirez seeks a COA to challenge the district court’s

disposition of his § 2255 motion and the disposition of his Rule 60(b) motion.

The district court resolved both motions on procedural grounds. Under these

circumstances, Mr. Morales-Ramirez 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). We have discretion to decide which issue to resolve first. See

id. at 484-85.

      In his COA application, Mr. Morales-Ramirez argues that the district court

abused its discretion in denying his Rule 60(b) motion and erred in characterizing

his 60(b) motion as a second-or-successive § 2255 motion. He also argues that he

is entitled to the actual-innocence exception to avoid the procedural bar to his

§ 2255 motion.

      Case no. 10-2277

      In response to the district court’s show-cause order, Mr. Morales-Ramirez

argued that the one-year statute of limitations should be equitably tolled because

of his actual innocence. He asserted that his conviction and sentence were

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unconstitutional because drug type and quantity should not be treated as an

element of the offense under § 841, citing to Apprendi v. New Jersey, 530 U.S.

466 (2000).

      “Equitable tolling would be appropriate . . . when a prisoner is actually

innocent.” Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). As the district

court explained, however, Mr. Morales-Ramirez did “not allege that he did not

commit the charged conduct; instead he argues that, under Apprendi v. New

Jersey, his indictment was defective.” R. at 51. The district court therefore

determined that Mr. Morales-Ramirez’s argument under Apprendi “fails to

establish that a ‘constitutional violation has probably resulted in the conviction of

one who is actually innocent.’” Id. (quoting Murray v. Carrier, 477 U.S. 478, 496

(1986)). As we have noted, actual innocence means factual innocence, see United

States v. Gabaldon, 522 F.3d 1121, 1124 n.2 (10th Cir. 2008), and the district

court here correctly recognized that Mr. Morales-Ramirez’s argument implicated

legal innocence, not factual innocence. Because no reasonable jurist could debate

whether the district court was correct in its procedural ruling to dismiss the

§ 2255 motion as untimely, Mr. Morales-Ramirez has not established his

entitlement to a COA.

      Case no. 11-2021

      We need not resolve Mr. Morales-Ramirez’s challenge to the district

court’s procedural ruling to dismiss his 60(b) motion as an unauthorized

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second-or-successive § 2255 motion because Mr. Morales-Ramirez must also

make a showing on the merits of his 60(b) motion in order to be entitled to a

COA. Cf. Slack, 529 U.S. at 484-85 (explaining that there are two components to

obtaining a COA from a procedural dismissal and that the prisoner must make a

showing on both the procedural issue and the underlying merits). As the Supreme

Court noted, “[A] court may find that it can dispose of the application in a fair

and prompt manner if it proceeds first to resolve the issue whose answer is more

apparent from the record and arguments.” Id. at 485. In this case, the issue

whose answer is more apparent from the record and arguments is the one related

to the merits of Mr. Morales-Ramirez’s 60(b) motion. In his 60(b) motion

Mr. Morales-Ramirez asserted that the district court abused its discretion in

dismissing his § 2255 motion as untimely. But as we have just explained above

in discussing the district court’s decision to dismiss his § 2255 motion, reasonable

jurists could not debate the correctness of the decision to dismiss that motion as

untimely. As a result, Mr. Morales-Ramirez has failed to show that jurists of

reason would find it debatable that his 60(b) motion stated a valid claim that the

district court abused its discretion in dismissing his § 2255 motion as untimely.




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      Accordingly, we DENY the application for a COA in case no. 10-2277 and

in case no. 11-2021, and we DISMISS these appeals.


                                                Entered for the Court



                                                Harris L Hartz
                                                Circuit Judge




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