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

                               FOR THE TENTH CIRCUIT                           August 13, 2018
                           _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 18-6031
                                                     (D.C. No. 5:09-CR-00081-M-1)
MARCUS DEWAYNE OAKES,                                        (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY *
                   _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges.
                 _________________________________

       Marcus Dewayne Oakes seeks a certificate of appealability (COA) to appeal the

district court’s dismissal of his motion under Fed. R. Civ. P. 60(b)(1). We deny a COA

and dismiss this appeal.

                                    BACKGROUND

       In 2009, Mr. Oakes pled guilty to brandishing a firearm during a crime of

violence, and aiding and abetting, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C.

§ 2. He did not take a direct appeal. In 2011, he filed a motion to vacate or correct his

sentence under 28 U.S.C. § 2255, which the district court denied as untimely. He



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
appealed. We denied him a certificate of appealability (COA) and dismissed his appeal.

United States v. Oakes, 445 F. App’x 88, 95 (10th Cir. 2011).

       On January 16, 2015, Mr. Oakes filed a motion to withdraw and nullify his guilty

plea pursuant to Fed. R. Civ. P. 60(d)(3), alleging fraud upon the court. The district court

construed his motion as an unauthorized second or successive § 2255 motion and

dismissed it for lack of jurisdiction. Mr. Oakes then filed several pleadings seeking

reconsideration of the dismissal, including a motion purportedly seeking relief under Fed.

R. Civ. P. 60(b)(1). On September 6, 2016, the district court denied these pleadings,

construing them also as unauthorized second or successive § 2255 motions.

       On November 10, 2016, Mr. Oakes filed a “Petition for Certificate of

Appealability” in district court, seeking “to appeal the denial of his Rule 60(b)(1) motion

on September 6, 2016.” Oakes v. United States, No. 5:09-cr-00081-M, ECF no. 186 at 1

(W.D. Okla. Nov. 10, 2016). The certificate of service accompanying the petition, sworn

to by Mr. Oakes, indicates that he handed it to prison staff to be filed as legal mail on

November 3, 2016, and that the postage was prepaid.

       The district court denied the petition for COA on January 19, 2018. On February

20, Mr. Oakes filed a notice of appeal to this court from the denial.

                                       DISCUSSION

       This case presents two jurisdictional questions. First, we must determine whether

Mr. Oakes timely filed his appeal. Second, we must determine whether he is entitled to a

COA.



                                              2
       We have jurisdiction to review only the district court’s final decisions. See

28 U.S.C. § 1291. Mr. Oakes’s notice of appeal states he appeals from the district court’s

order denying him a COA. This confuses the district court’s final order denying § 2255

relief, which was appealable, see id. § 2253(a), with its order denying a COA, which is

not itself a final, appealable decision, cf. id. § 2253(c)(1). His notice of appeal is

inadequate to appeal from the district court’s final order of September 6, 2016, both

because it was not filed within 60 days of that order, see Fed. R. App. P. 4(a)(1)(B), and

because it does not specify the September 6 order as the order appealed from, see id. Rule

3(c)(1)(B) (notice of appeal must “designate the judgment, order, or part thereof being

appealed”). Nevertheless, we may construe his November 10, 2016, petition for COA as

the functional equivalent of a notice of appeal from the September 6 decision. See

Martin v. Rios, 472 F.3d 1206, 1207 (10th Cir. 2007). Mr. Oakes’s submissions

demonstrate his compliance with the prison mailbox rule, 1 and we deem his notice of

appeal timely filed on November 3, 2016.

       Nevertheless, we deny his request for a COA, because reasonable jurists would not

debate the district court’s denial of his Fed. R. Civ. P. 60(b)(1) motion. Because the

       1
          Mr. Oakes was required to file his notice of appeal within 60 days of the district
court’s decision. See Fed. R. App. P. 4(a)(1)(B). Sixty days from September 6, 2016
was November 5, 2016, a Saturday, making the sixtieth day November 7, 2016, a
Monday. See id. Rule 26(a)(1)(C). Mr. Oakes’s petition for COA was not filed in district
court until November 10. But because he is a federal prisoner proceeding pro se, we can
deem his notice of appeal as timely filed if he has satisfied the prison mailbox rule.
Under that rule, a prisoner’s submission is treated as timely if placed in the institution’s
internal mail system prior to the deadline. See id. Rule 4(c)(1). Mr. Oakes has supplied
adequate evidence that he gave the COA petition with postage prepaid to prison staff on
November 3, 2016, making the petition, which we treat as a notice of appeal, timely
under Rule 4(c)(1).
                                               3
district court dismissed his claim on procedural grounds, Mr. Oakes must show both “that

jurists of reason would find it debatable whether the [motion] 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). To the extent Mr. Oakes has merely attempted to assert or reassert claims

raised in his § 2255 motion, reasonable jurists could not debate the correctness of the

district court’s dismissal of Mr. Oakes’s Rule 60(b) motion as an unauthorized second or

successive § 2255 motion. See United States v. Baker, 718 F.3d 1204, 1206 (10th Cir.

2013) (“A prisoner’s post-judgment motion is treated like a second-or-successive § 2255

motion . . . if it asserts or reasserts claims of error in the prisoner’s conviction.”).

       But Mr. Oakes also argues that the district court should have construed language

in his § 2255 motion as an actual innocence claim and therefore erred in dismissing that

motion as untimely instead of sua sponte extending the limitations period to avoid a

miscarriage of justice. He also complains that he has attempted to assert this argument in

subsequent pleadings such as his motion alleging “fraud on the court,” but the district

court has failed to address his claim. A “true” Rule 60(b) motion, which “does not

challenge the merits of the district court’s resolution of [the] § 2255 motion, but only an

alleged defect in the integrity of the earlier § 2255 proceedings,” does not require

authorization from this court and so is not subject to dismissal as an unauthorized second-

or-successive motion. Peach v. United States, 468 F.3d 1269, 1271 (10th Cir. 2006) (per

curiam). But even if Mr. Oakes’s argument that the district court failed to treat his

allegations as an actual-innocence or miscarriage-of-justice claim asserts a defect in the

                                                4
original § 2255 proceedings rather than reasserting a substantive § 2255 claim, we cannot

grant a COA on this issue.

       “The miscarriage of justice exception [to the timeliness requirement] applies to a

severely confined category: cases in which new evidence shows it is more likely than not

that no reasonable juror would have convicted the petitioner.” McQuiggin v. Perkins,

569 U.S. 383, 394-95 (2013) (brackets and internal quotation marks omitted). In

Mr. Oakes’s prior appeal, we discussed the alleged new evidence supporting his claim of

ineffective assistance of counsel. To the extent his miscarriage-of-justice argument relies

on evidence presented with his § 2255 motion, our statements in that case make it clear

that this evidence cannot meet the miscarriage-of-justice exception. See Oakes,

445 F. App’x at 93 (“[T]he victim’s affidavit does not constitute a newly discovered fact;

Mr. Oakes was aware of the alleged exculpatory evidence at the time of the trial and still

chose to plead guilty rather than risk a trial on all three counts. The affidavit does not

provide a basis for providing Mr. Oakes additional time to file his § 2255 motion.”). 2

Given this prior appellate holding, reasonable jurists could not find the district court

erred, either in its original order on his § 2255 motion or in its later rulings, by failing to

sua sponte treat this evidence as new evidence of actual innocence showing a miscarriage

of justice, sufficient to excuse the untimeliness of his § 2255 motion. Furthermore,

although Mr. Oakes insists that our prior holding in his case was incorrect, see COA Mot.


       2
          To the extent Mr. Oakes’s “fraud on the court” motion relied on other, alleged
new evidence not presented with his original § 2255 motion, we agree with the district
court that these allegations themselves represent an unauthorized second-or-successive
§ 2255 motion, which the district court properly dismissed.
                                               5
at 7-9, it is law of the case, and he provides us with no good reason to depart from it, see,

e.g., United States v. Trent, 884 F.3d 985, 994 (10th Cir. 2018) (“Under the law of the

case doctrine, when a court decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case.” (internal quotation marks

omitted)).

       Accordingly, we deny Mr. Oakes’s COA application and his IFP motion, and we

dismiss this matter.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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