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

                            FOR THE TENTH CIRCUIT                          May 20, 2016

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
WALTER EDWARD KOSTICH, JR.,

       Petitioner - Appellant,

v.                                                          No. 16-5007
                                                (D.C. No. 4:12-CV-00065-CVE-PJC)
TRACY MCCOLLUM, Warden,                                     (N.D. Okla.)

       Respondent - Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.


      Walter Edward Kostich, Jr., an Oklahoma prisoner proceeding pro se, requests

a certificate of appealability (COA) to appeal from the district court’s denial in part

and dismissal in part of his post-judgment motions seeking relief from the denial of

his 28 U.S.C. § 2254 habeas application. We deny a COA and dismiss this matter.

                                 I. BACKGROUND

      Mr. Kostich was convicted of federal crimes and then convicted in an

Oklahoma court of a state crime arising out of the same conduct. His § 2254

application argued that his Oklahoma conviction violated the Double Jeopardy

*
       This order is not binding precedent except under the doctrines of law of the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.
Clause and his trial and appellate counsel were ineffective for failing to argue double

jeopardy. The district court denied relief, and this court denied a COA, see Kostich

v. McCollum, 624 F. App’x 618, 624 (10th Cir. 2015), cert. denied, 2016 WL 659712

(2016) (No. 15-8164).

      Mr. Kostich then filed four motions in the district court: (1) a recusal motion;

(2) a Fed. R. Civ. P. 60(b) motion to reopen his habeas case; (3) a motion to change

venue, and (4) a motion for an evidentiary hearing. The district court addressed the

merits of the recusal motion, but found no grounds justifying recusal and therefore

declined to recuse. Therefore the court also denied the motion to change venue.

      The district court further determined that the Rule 60(b) motion was a mixed

motion. One claim—that the judge was biased in the habeas case—properly was

raised under Rule 60(b). The court denied that claim for the reasons given in denying

the motion to recuse. Because the other allegations in the Rule 60(b) motion all

asserted or reasserted grounds for habeas relief, however, the court held that they

were second or successive habeas claims that were subject to the authorization

requirements of 28 U.S.C. § 2244(b). Accordingly, the court dismissed those

portions of the motion for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam). It then denied the motion for an evidentiary hearing.

                                  II. DISCUSSION

      To appeal, Mr. Kostich must obtain a COA. Spitznas v. Boone, 464 F.3d 1213,

1217-18 (10th Cir. 2006). The standard for a COA depends on whether the district


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court has rejected a claim on the merits or dismissed a filing on procedural grounds.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). For a merits decision, the movant

“must demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Id. With regard to a procedural

dismissal, however, the movant 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.” Id.

A.    Recusal Allegations

      The recusal motion and the first claim in the Rule 60(b) motion alleged that

judicial bias tainted the habeas decision. Because these assertions challenged the

integrity of the federal habeas proceedings, the district court appropriately decided

them on the merits. See Spitznas, 464 F.3d at 1216-17. For a COA, therefore,

Mr. Kostich must show the decisions are debatable or wrong. Slack, 529 U.S. at 484.

We review the denial of recusal for abuse of discretion. United States v. Cooley,

1 F.3d 985, 994 (10th Cir. 1993).

      Mr. Kostich alleges that the district judge is biased against him because the

prosecutors involved in his state and federal cases are “assigned” to her. He relies on

a docket in an unrelated matter, In re United States Attorneys and Clerks, which

appears to be an administrative matter for the filing of documents regarding the

appointment and termination of attorneys in the executive branch, including Assistant


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United States Attorneys and Special Assistant United States Attorneys. Near the top,

the docket report states “United States Attorneys and Clerks,” and immediately

following on the next line, “Assigned to: Judge Claire V Eagan.” R. at 91.

       Mr. Kostich apparently misunderstands the docket to mean that the “United

States Attorneys and Clerks” are “assigned” to the district judge. This is incorrect.

The docket merely shows the name of the matter and the judge to which the matter is

assigned. It does not mean that the “United States Attorney and Clerks” are

somehow “assigned” to the judge. As the district judge explained, attorneys entering

appearances before her do not work for her and are not “assigned” to her. Nothing

about any of these circumstances (including the fact that Mr. Kostich’s state

prosecutor was named a Special Assistant United States Attorney) calls into question

the district judge’s impartiality.

       Mr. Kostich also notes that he has filed complaints about the judge with

various agencies and officials. Such complaints, however, do not require recusal.

See In re Mann, 229 F.3d 657, 658 (7th Cir. 2000); Cooley, 1 F.3d at 993, 994 n.5.

       Further, Mr. Kostich complains that the district judge has granted virtually no

habeas petitions in the past five years. Even assuming this allegation is true, it does

nothing to show that the judge was biased in his case. Moreover, adverse judicial

rulings themselves provide no basis for recusal. See Liteky v. United States, 510 U.S.

540, 555 (1994); Cooley, 1 F.3d at 993-94.




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      No reasonable jurist could debate whether the district court abused its

discretion in denying the motion to recuse and the Rule 60(b) claim predicated upon

alleged judicial bias. We thus deny a COA as to these issues.

      B.     Second or Successive § 2254 Claims

      The district court dismissed the other Rule 60(b) claims as unauthorized

second or successive § 2254 claims. Accordingly, for a COA on these allegations,

Mr. Kostich must satisfy Slack’s test for a procedural ruling, including showing it is

debatable whether the procedural ruling is correct. Slack, 529 U.S. at 484.

      But no reasonable jurist could debate that ruling. Besides the bias allegations,

Mr. Kostich’s Rule 60(b) motion challenged the validity of his Oklahoma conviction

and reargued the merits of his § 2254 claims, particularly double jeopardy. Thus, the

motion attempts to bring habeas claims. See Gonzalez v. Crosby, 545 U.S. 524, 532

& n.4 (2005); Spitznas, 464 F.3d at 1215-16. Mr. Kostich already has pursued relief

under § 2254, so these claims are second or successive claims that require

authorization under § 2244(b). “A district court does not have jurisdiction to address

the merits of a second or successive . . . 28 U.S.C. § 2254 claim until this court has

granted the required authorization.” In re Cline, 531 F.3d at 1251.

      Mr. Kostich suggests that his motion should be considered an “independent

action” as contemplated by United States v. Beggerly, 524 U.S. 38, 44-45 (1998), and

therefore it is not subject to § 2244’s restrictions. He is mistaken. The “independent

action” provision discussed in Beggerly was in Rule 60(b), but since has been moved


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to Rule 60(d)(1). Motions brought under Rule 60(d), however, are subject to the

same analysis as other motions to determine if they bring unauthorized second or

successive habeas claims. See United States v. Baker, 718 F.3d 1204, 1207 (10th Cir.

2013) (addressing a fraud-on-the-court claim brought under Rule 60(d)(3)); see also

Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1277 n.11 (11th Cir. 2004)

(en banc) (“Nor may a petitioner circumvent the restrictions on second or successive

petitions by the simple expedient of filing an independent action aimed at the

judgment denying habeas relief.”), aff’d, Gonzalez v. Crosby, 545 U.S. 524 (2005).

      No reasonable jurist could debate the propriety of the district court’s dismissal,

for lack of jurisdiction, of those portions of the Rule 60(b) motion setting forth

habeas claims. We also deny a COA as to these claims.

                                 III. CONCLUSION

      Mr. Kostich’s motion to certify a question of state law is denied. His request

for counsel, made in his combined opening brief and application for a COA, is

denied. A COA is denied and this matter is dismissed.


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




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