                                                                                       FILED
                                                                           United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                              Tenth Circuit

                             FOR THE TENTH CIRCUIT                               January 21, 2020
                         _________________________________
                                                                              Christopher M. Wolpert
                                                                                  Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 19-6139
                                                       (D.C. Nos. 5:17-CV-00328-R &
 BRIAN WILLIAM MCKYE,                                       5:11-CR-00045-R-1)
                                                                (W.D. Okla.)
       Defendant - Appellant.
                      _________________________________

                                      ORDER
                         _________________________________

Before HOLMES, KELLY, and MATHESON, Circuit Judges.
                  _________________________________

       Brian William McKye, proceeding pro se, seeks a certificate of appealability

(COA) to appeal from the district court’s decision dismissing in part and denying in part

his motion for relief under Rule 60(b)(3) of the Federal Rules of Civil Procedure. He

also requests in the alternative that this court grant him authorization to file a second or

successive 28 U.S.C. § 2255 motion. For the reasons that follow, we deny a COA and we

deny authorization.

       I. Background

       Mr. McKye was convicted of seven counts of securities fraud and one count of

conspiracy to commit money laundering. We reversed and remanded due to a

jury-instruction error. See United States v. McKye, 734 F.3d 1104, 1005 (10th Cir. 2013).

After his retrial, Mr. McKye was convicted on the same counts. He appealed, and we
affirmed his convictions and sentence. See United States v. McKye, 638 F. App’x 680,

681 (10th Cir. 2015). Mr. McKye then filed a pro se § 2255 motion. The district court

denied the motion, and we denied Mr. McKye’s request for a COA. He subsequently

filed a motion seeking relief under Rule 60(b)(3). The district court determined that a

portion of that motion was an unauthorized second or successive § 2255 motion and

dismissed it for lack of jurisdiction. The court concluded that the remainder of the

motion was properly brought under Rule 60(b)(3), but that Mr. McKye was not entitled to

relief because the motion had not been timely filed. The court therefore denied that

portion of the Rule 60(b)(3) motion. Mr. McKye now seeks to appeal the district court’s

decision.

       II. COA

       The district court dismissed in part and denied in part the Rule 60(b)(3) motion on

procedural grounds. To obtain a COA to challenge the district court’s procedural rulings,

Mr. McKye must show both “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). Mr. McKye has not made this showing.

       In his Rule 60(b)(3) motion, Mr. McKye challenged the district court’s disposition

of “Claim J” in his § 2255 motion. In Claim J, Mr. McKye asserted that “[p]rosecutors

elicited testimony concerning an unadmitted document, over Mr. McKye’s objection, of a

state judge’s out-of-court opinion on a central, contested issue in the case.” R. Vol. I at

146-47. He argued that “[t]he testimony, (read before jurors), of this judicial finding was

                                               2
inadmissible hearsay under [the] 10th Circuit’s precedential holdings.” Id. at 148. He

also asserted that appellate counsel made an error in his appeal brief related to this issue,

which counsel failed to correct even after Mr. McKye alerted him of the error, see id. at

148, and that appellate counsel “failed to present exculpatory evidence of two million

dollars in liability insurance coverage for Mr. McKye, which had been actually presented

as evidence in the first McKye appeal,” id. at 149.

       In its order denying the § 2255 motion, the district court explained:

       During cross-examination the Government questioned [Agent] LaBarthe
       [of the Oklahoma Department of Securities] about the outcome of a state
       civil action filed against Mr. McKye and his companies as a result of her
       agency’s investigation. (The same investment notes were at issue in both
       the civil action and Mr. McKye’s federal criminal trial.) Agent LaBarthe
       testified in the criminal trial that the state court previously held that the
       investment notes were securities.

Id. at 211. The district court recognized that Mr. McKye was arguing that

Agent LaBarthe’s testimony was inadmissible hearsay. The court noted, however, that

Mr. McKye “already raised this issue on appeal, and the Tenth Circuit summarily

rejected it, finding that the introduction of the testimony was harmless.” Id. The court

therefore concluded that Mr. McKye could not “relitigate” that issue “via collateral

attack.” Id. at 212.

       With respect to the allegations of ineffective assistance of appellate counsel in

Claim J, the district court explained, “Mr. McKye insists his appellate counsel poorly

framed his hearsay argument in his brief and failed to argue that Mr. McKye’s carrying

$2 million in insurance coverage demonstrated he meant to protect his investors.” Id. at

217-18. But the court determined that “appellate counsel . . . was not required to raise

                                              3
every possible issue on appeal” and further noted that “[t]he weeding out of weak claims

to be raised on appeal is the hallmark of effective advocacy, because every weak issue in

an appellate brief or argument detracts from the attention a judge can devote to the

stronger issues, and reduces appellate counsel’s credibility before the court.” Id. at 218

(internal quotation marks omitted). The court concluded that “Mr. McKye has failed to

show how his appellate counsel’s representation was in any way objectively

unreasonable.” Id.

       In his Rule 60(b)(3) motion, Mr. McKye argued that the district court incorrectly

concluded in its order denying his § 2255 motion that he had already raised part of

Claim J on appeal. He asserted that the procedural bar was not warranted and that the

court should review that part of Claim J on the merits. He also argued that Claim J

“properly raised a relevant claim of ineffective assistance of counsel [that] was not ruled

upon by the district court,” and he asked the district court to conduct a merits review of

that part of Claim J as well. Id. at 285. Mr. McKye then proceeded to argue the merits of

his claim for ineffective assistance of appellate counsel.

       In its order on Mr. McKye’s Rule 60(b)(3) motion, the district court explained that

it did address Claim J on the merits, “with the exception of [Mr. McKye’s] argument that

particular hearsay testimony was improperly admitted.” Id. at 358. The court therefore

determined that any arguments that were not challenging the procedural bar were

properly characterized as second or successive. But the court further determined that

Mr. McKye could bring a Rule 60(b)(3) motion challenging the court’s procedural ruling

that he could not relitigate the evidentiary issue on collateral review.

                                              4
       A. Second or Successive § 2255 Motion

       A Rule 60(b) motion should be treated as a second or successive § 2255 motion if

it challenges the defendant’s conviction or sentence rather than a procedural error in the

prior § 2255 proceeding. See United States v. Nelson, 465 F.3d 1145, 1147-49 (10th Cir.

2006); see also Spitznas v. Boone, 464 F.3d 1213, 1215-16 (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. Conversely, it is a

‘true’ 60(b) motion if it either (1) challenges only a procedural ruling of the habeas court

which precluded a merits determination of the habeas application; or (2) challenges a

defect in the integrity of the federal habeas proceeding . . . .” (citations omitted)). A

prisoner may not file a second or successive § 2255 motion unless he first obtains an

order from the circuit court authorizing the district court to consider the motion.

28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district court

lacks jurisdiction to address the merits of a second or successive § 2255 motion.

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

       In his Combined Motion for COA and Authorization (“Motion”), Mr. McKye fails

to adequately address how the district court erred in determining that a portion of his

Rule 60(b)(3) motion was an unauthorized second or successive § 2255 motion and

dismissing it for lack of jurisdiction. Instead, he spends his motion arguing that the

district court abused its discretion by failing to apply the correct legal standard to Claim J

in his § 2255 motion. He ends his Motion by stating that “[i]f the District Court had

applied the legal standard of Strickland to McKye’s evidence, two dead bang winners

                                              5
would have been found and an evidentiary hearing, or a new trial would have been

granted.” Motion at 28. He then makes the conclusory assertion that “[t]his ‘true

60(b)(3)’ was not ‘already raised’ and is ‘new’ evidence warranting a COA.” Id.

Mr. McKye’s Motion is an attempt to relitigate the merits of one of his § 2255 claims.

He has failed to show that reasonable jurists could debate the correctness of the district

court’s procedural ruling that a portion of his Rule 60(b)(3) motion was an unauthorized

second or successive § 2255 motion.1

       B. Rule 60(b)(3) Motion

       The district court determined that the remaining portion of Mr. McKye’s motion

that was properly brought under Rule 60(b)(3) was untimely. The court noted that the

Rule 60(b)(3) motion was filed on January 23, 2019, which was more than one year after

July 31, 2017—the date the court entered its order and judgment denying Mr. McKye’s

§ 2255 motion. A motion seeking relief under Rule 60(b)(3) must be filed “no more than

a year after the entry of the judgment or order” that is being challenged. Fed. R. Civ. P.

60(c)(1). In his Motion, Mr. McKye argues that the district court’s “‘untimely’ bar was

simply wrong” because the district court had previously found that Claim J “was not



       1
         In his Motion, Mr. McKye makes two other conclusory assertions that could be
read as supporting an argument that the court erred in construing his Rule 60(b)(3)
motion as an unauthorized second or successive § 2255 motion. See Motion at 8 (“This
case of alleged securities fraud is extraordinary, exceptional, and warrants true 60(b)(3)
merits review.”); id. at 28 (“Failure of appellate counsel to re-present the same insurance
protections this Court cited in its reversal, blindfolded the Second Panel and makes this a
truly extraordinary ‘true 60(b)’ motion.”). But, again, these assertions lack any substance
and fail to show that jurists could reasonably debate the correctness of the district court’s
procedural ruling.
                                              6
‘untimely’” when it was presented in his § 2255 motion in 2017. Motion at 11. But the

fact that Mr. McKye’s § 2255 motion was timely filed does not mean that his

Rule 60(b)(3) motion was also timely filed. Mr. McKye has failed to show that

reasonable jurists could debate the district court’s determination that his Rule 60(b)(3)

motion was untimely.

       III. Authorization

       Mr. McKye next argues that his motion qualifies as a prima facie showing for

authorization to file a second or successive § 2255 motion based on new evidence. To be

entitled to authorization, he must show that he has “newly discovered evidence that, if

proven and viewed in light of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that no reasonable factfinder would have found the movant

guilty of the offense.” 28 U.S.C. § 2255(h)(1). But he does not offer any newly

discovered evidence. Instead, he points to evidence that he knew about before his second

direct appeal, which he contends his attorney overlooked and failed to present to this

court during that appeal. He “requests only a fair review of misconduct and insurance

evidence withheld from Second Panel eyes.” Motion at 13. Mr. McKye knew of this

evidence before he filed his first § 2255 motion. Because he has not identified any newly

discovered evidence since that time, he has failed to meet the standard for authorization

in § 2255(h)(1).

       IV. Conclusion

       We deny a COA and we deny Mr. McKye’s alternative request for authorization.

The denial of authorization “shall not be appealable and shall not be the subject of a

                                             7
petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). Mr. McKye

also filed a motion seeking to proceed on appeal without prepayment of costs or fees.2

We deny that motion and order him to immediately remit the full amount of the filing fee.


                                              Entered for the Court



                                              CHRISTOPHER M. WOLPERT, Clerk




       2
         After the district court ruled on his Rule 60(b)(3) motion, Mr. McKye filed his
notice of appeal and a motion to proceed without prepayment of costs and fees on appeal
(“IFP motion”). The district court denied the IFP motion, concluding that Mr. McKye
failed to make a “reasoned, nonfrivolous argument on the law and facts in support of the
issues raised.” R., Vol. I at 363 (internal quotation marks omitted). Mr. McKye
attempted to file an appeal from the denial of his IFP motion, but that is not the proper
procedure in this situation. Instead, Rule 24(a)(5) of the Federal Rules of Appellate
Procedure allows Mr. McKye to renew his IFP motion with this court. After we received
but did not file his appeal from the district court’s denial of his IFP motion, we sent him a
letter notifying him that he needed to file his IFP motion on this court’s forms. He did so,
but he also attached an additional document that he titled “Supplementary Addendum to
Appeal of Denial of In Forma Pauperis.” To be clear, there is no appeal from the district
court’s denial of Mr. McKye’s IFP motion; we simply consider the IFP motion that
Mr. McKye filed in this court.
                                             8
