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

                            FOR THE TENTH CIRCUIT                              August 14, 2019
                        _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 JAMES FAIRCLOTH,

       Petitioner - Appellant,

 v.                                                           No. 18-1488
                                                     (D.C. No. 1:16-CV-02367-LTB)
 RICK RAEMISCH, Executive Director of                           (D. Colo.)
 CDOC; JOHN CHAPDELAINE, Warden
 of Sterling Corr. Fac.; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before LUCERO, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

       James Faircloth seeks to appeal the denial of relief under Fed. R. Civ. P. 60(b)

from a prior judgment dismissing his 28 U.S.C. § 2254 application. For the reasons

explained below, we deny a certificate of appealability (COA) and dismiss this matter.

                                             I

       In 2009, Faircloth pleaded guilty in a Colorado court to identity theft and

aggravated motor vehicle theft. He was sentenced to consecutive eight-year prison terms



       
         This order is not binding precedent except under the doctrines of law of the case,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.
and did not appeal.1 In 2012, he sought post-conviction relief in the state courts. His

efforts failed, and in 2015, the Colorado Supreme Court declined to review the denial of

post-conviction relief.

       Faircloth then turned to the federal courts for relief. In 2016, he filed separate

habeas applications under § 2254, challenging his convictions and sentences. After he

filed an amended application, the district court consolidated the cases and denied relief,

ruling that Faircloth’s habeas application was time-barred under the governing one-year

statute of limitations. The court determined the deadline expired on July 25, 2010, tolling

was unavailable, and Faircloth’s § 2254 application was six years too late.

       Faircloth moved the court to alter or amend its judgment under Fed. R. Civ. P.

59(e), insisting the one-year deadline should be equitably tolled because he relied on his

attorney’s incorrect advice concerning the statute of limitations. He also asserted the

state court that presided over his criminal proceedings lacked jurisdiction. The district

court rejected those arguments, ruling it was “undisputed that the § 2254 [application]

was filed out of time by more than six years and that under applicable law equitable

tolling was not warranted.” Faircloth v. Raemisch, 692 F. App’x 513, 517 (10th Cir.

2017) (unpublished) (brackets, ellipsis, and internal quotation marks omitted). The court


       1
         Faircloth was recently paroled, but the collateral consequences of his
convictions, which he contests here, are sufficient to satisfy the in-custody requirement.
See Jones v. Cunningham, 371 U.S. 236, 243 (1963); cf. Rhodes v. Judiscak, 676 F.3d
931, 932-33, 935 (10th Cir. 2012) (holding that habeas petitioner’s challenge only to the
length of his incarceration—not his convictions—was mooted by his release from prison
because, although he was serving a term of supervised release, a favorable ruling could
not redress his term of incarceration, and it was speculative that a favorable ruling would
result in a reduction or elimination of supervised release).
                                              2
also ruled that “Faircloth’s contention regarding the state court’s jurisdiction [was] not a

cognizable claim under § 2254.” Id. We subsequently denied a COA on both of these

issues. See id. at 523-25.

       Almost a year later, in May 2018, Faircloth returned to the district court seeking

documents in his habeas case and requesting leave to proceed in forma pauperis (IFP).

The district court denied the requests in a minute order, noting the case was closed.

Faircloth continued to submit additional documents to the court, however, prompting it to

enter another minute order denying all requests. The court reiterated that the case was

closed, and it directed the clerk to strike any future filings. Nevertheless, Faircloth filed a

Rule 60(b) motion, an affidavit (his own), and a motion to file an amended Rule 60(b)

motion, all of which were summarily stricken by the clerk. Still undeterred, Faircloth

moved for a status report on his purportedly amended Rule 60(b) motion; he also filed a

supplemental memorandum and a second amended Rule 60(b) motion. The district court

denied these filings in a third minute order, recounting the chronology of the proceedings

and reiterating that the case was closed. The court advised Faircloth that any future

filings would not be considered and again directed the clerk to strike any future filings.

Faircloth appealed.

                                               II

       “Our first task . . . is to consider each of the issues raised in the [Rule 60(b)]

motion in order to determine whether it represents a second or successive [habeas]

petition, a ‘true’ Rule 60(b) motion, or a mixed motion.” Spitznas v. Boone, 464 F.3d

1213, 1224 (10th Cir. 2006 ). Faircloth’s second amended Rule 60(b) motion reiterated

                                               3
two previously rejected arguments that 1) the deadline for filing his § 2254 application

should be equitably tolled because he relied on his attorney’s incorrect advice concerning

the statute of limitations, and 2) the state court that presided over his criminal

proceedings lacked jurisdiction.

       The first argument represents a “true” Rule 60(b) claim because it does not assert a

federal basis for relief from the judgment of conviction; rather, it challenges only a

procedural ruling that precluded a merits determination—the dismissal of his § 2254

application as barred by the statute of limitations. See Gonzalez v. Crosby, 545 U.S. 524,

532-33 & n.4 (2005); Spitznas, 464 F.3d at 1215-16. To appeal this ruling, Faircloth

must obtain a COA. 28 U.S.C. § 2253(c)(1)(A); Spitznas, 464 F.3d at 1217-18.2 We will

issue a COA only if Faircloth “shows, at least, 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).

       Ordinarily, we would assess the district court’s decision concerning the statute of

limitations to determine whether it is debatable among jurists of reason. But as indicated

above, another panel of this court has already answered precisely that question in denying

a COA on this very same issue. See Faircloth, 692 F. App’x at 523 (denying a COA on

the statute-of-limitations issue because “no reasonable jurist could debate the district

court’s determination that Mr. Faircloth is not entitled to equitable tolling with regard to


       2
         We construe Faircloth’s notice of appeal as a request for a COA. See United
States v. Springer, 875 F.3d 968, 980-81 (10th Cir. 2017).
                                              4
his § 2254 motion”). Our prior determination constitutes the law of the case, and we will

not now revisit it. See United States v. Pedraza, 466 F.3d 932, 934 (10th Cir. 2006)

(applying law-of-the-case doctrine to deny authorization to file a second or successive

28 U.S.C. § 2255 motion where the movant was previously denied authorization to file

essentially the same claim). We therefore deny a COA to the extent Faircloth seeks to

appeal the denial of the portion of his Rule 60(b) motion challenging the dismissal of his

§ 2254 application on statute-of-limitations grounds.

       Faircloth’s second argument reasserts his challenge to the state court’s jurisdiction

over his criminal proceedings. This is not a “true” Rule 60(b) claim, but rather, it is an

unauthorized second or successive § 2254 claim because it challenges his convictions.

See Spitznas, 464 F.3d at 1215 (“Under Gonzalez, 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.”). We have not authorized this claim,

however, and thus the district court did “not even have jurisdiction to deny the relief

sought in the pleading.” United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006).

The court had only two options: it could either dismiss the motion for lack of jurisdiction

to the extent it presented an unauthorized second or successive § 2254 claim or transfer it

to this court if it were in the interests of justice to do so. See United States v. Springer,

875 F.3d 968, 972 (10th Cir. 2017). The court did neither and simply denied relief

without subject matter jurisdiction. Faircloth challenges this ruling, but to appeal, he

must first obtain a COA. 28 U.S.C. § 2253(c)(1)(A); Buck v. Davis, 137 S. Ct. 759, 773

(2017).

                                                5
       Although our COA inquiry usually entails evaluating whether the district court’s

decision was debatable among jurists of reason, “we may deny a COA if there is a plain

procedural bar to habeas relief, even though the district court did not rely on that bar.”

Springer, 875 F.3d at 981 (internal quotation marks omitted). Faircloth seeks to

challenge the denial of relief on a claim that the district court did not have jurisdiction to

deny. “Under these circumstances, reasonable jurists could not debate whether

[Faircloth] could prevail on appeal when the district court lacked jurisdiction to issue a

final order.” Id. at 983. He is therefore not entitled to a COA on this claim. See id.

                                               III


       For the foregoing reasons, we deny a COA and dismiss this matter with

instructions to the district court to vacate its decision to the extent it lacked jurisdiction to

deny the unauthorized second or successive § 2254 claim. See id. & n.14. Faircloth’s

motion to proceed IFP is denied, as is his motion to file an amended opening brief.


                                                            Entered for the Court


                                                            Nancy L. Moritz
                                                            Circuit Judge




                                                6
