                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   August 8, 2011
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                         No. 11-3141
v.
                                              (D.C. No. 5:04-CR-40001-SAC-1)
                                                         (D. Kansas)
MARIANO BEDOLLA,

             Defendant - Appellant.



                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.


      Mariano Bedolla, a federal prisoner, was convicted of drug offenses,

including possession of methamphetamine and conspiracy to distribute

methamphetamine, and was sentenced to 235 months’ imprisonment. United

States v. Bedolla, 232 F. App’x 805, 806 (10th Cir. 2007). This court affirmed

his convictions. Id. at 811. On August 14, 2008, Bedolla filed a pro se 28 U.S.C.

§ 2255 motion seeking relief from his convictions and sentence. The district

court denied the motion on May 18, 2009, and Bedolla did not seek a COA to

appeal that ruling. Instead, he filed a Fed. R. Civ. P. 60(b) motion raising three

claims: (1) the district court denied his § 2255 motion without permitting him the
opportunity to file a supporting memorandum or providing him with a transcript

of the sentencing proceeding, (2) trial and appellate counsel were ineffective for

failing to raise Apprendi and Booker claims, and (3) trial counsel was ineffective

for failing to seek a departure or a variance from the advisory guidelines

sentence.

      The district court construed the latter two claims as an unauthorized request

to file a second or successive § 2255 motion and transferred them to this court

after concluding it did not have jurisdiction to address them. See 28 U.S.C.

§ 2244(b)(3)(A) (“Before a second or successive application permitted by this

section is filed in the district court, the applicant shall move in the appropriate

court of appeals for an order authorizing the district court to consider the

application.”); see also United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir.

2006) (“It is the relief sought, not [the] pleading’s title, that determines whether

the pleading is a § 2255 motion.”). The court concluded Bedolla’s first claim was

a “true” Rule 60(b) motion but rejected it on the merits. See Spitznas v. Boone,

464 F.3d 1213, 1217 (10th Cir. 2006) (permitting a district court to reach the

merits of “true Rule 60(b) allegations” in a mixed Rule 60(b) motion).

      Bedolla now seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his Rule 60(b) motion. 1 See id. at 1217-18 (holding a

      1
       The district court’s characterization of Bedolla’s two ineffective assistance
claims was affirmed by this court and his request to file a second or successive
                                                                       (continued...)

                                          -2-
COA is required to appeal the denial of Rule 60(b) relief from a habeas

judgment). To be entitled to a COA, Bedolla must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, he must demonstrate “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (quotations omitted). In evaluating whether Bedolla has satisfied his

burden, this court undertakes “a preliminary, though not definitive, consideration

of the [legal] framework” applicable to each of his claims. Id. at 338; see also

LaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir. 2003) (reviewing the denial

of a Rule 60(b)(6) motion for abuse of discretion). Although Bedolla need not

demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id. (quotations omitted).

      This court has reviewed Bedolla’s appellate brief and application for COA,

the district court’s order, and the entire record on appeal pursuant to the




      1
       (...continued)
§ 2255 motion was denied. In re Bedolla, No. 11-3117 (10th Cir. June 6, 2011)
(order denying motion for remand and motion for authorization).

                                          -3-
framework set out by the Supreme Court in Miller-El and concludes Bedolla is

not entitled to a COA. Accordingly, we deny his request for a COA and dismiss

this appeal. Bedolla’s request to proceed in forma pauperis on appeal is granted.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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