                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          December 20, 2005
                                   TENTH CIRCUIT
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 05-6208
 v.                                              (D.C. Nos. 99-CV-00348 and
                                                        CR-96-84-T)
 HAROLD EUGENE BELL,                                    (W.D. Okla.)

          Defendant - Appellant.


                                ORDER
                 DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


      Harold Eugene Bell, a prisoner appearing pro se, seeks a certificate of

appealability (“COA”) to appeal from the district court’s denial of his “Motion

for Reconsideration and Clarification,” which sought reconsideration of an earlier

motion to have his initial § 2255 motion reopened. 1 The earlier motion (filed in

2005) sought reopening on the basis that the district court re-characterized certain

pleadings (filed in 1999) and did not advise Mr. Bell of the need to raise every

available constitutional claim so as to avoid the restrictions associated with

second or successive § 2255 motions. R. Doc. 239. The district court construed


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          Mr. Bell also seeks to proceed in forma pauperis (“IFP”).
the motion for reconsideration as arising under Rule 60(b), Fed. R. Civ. P., and

denied it.

      Briefly, by way of background, Mr. Bell was convicted in 1997 of

conspiracy to distribute cocaine powder and cocaine base (i.e., crack), and

sentenced to life imprisonment. This court affirmed that conviction in United

States v. Bell, 154 F.3d 1205 (10th Cir. 1998). Next, Mr. Bell filed a motion for

judgment of acquittal and/or a new trial on February 22, 1999. The district court

construed the motion as a request for habeas relief under § 2255, and denied it

because Mr. Bell failed to present any newly discovered evidence. Mr. Bell

sought a COA in order to appeal the district court’s denial of his § 2255 motion.

In an unpublished opinion, we determined that the district court did not err in

treating the motion as one requesting relief under § 2255, and subsequently

denied Mr. Bell’s request for a COA. United States v. Bell, 1999 WL 713320 at

*1 (10th Cir. Sept. 14, 1999) (unpublished).

      We agree with the district court that the present motion to reconsider may

be characterized as a Rule 60(b) motion. In the § 2254 context, the Supreme

Court recently held that a Rule 60(b) motion should not be construed as a second

or successive habeas petition where it does not add a new claim for relief or

challenge the district court’s resolution of prior claims on the merits. Gonzalez v.

Crosby, 125 S. Ct. 2641, 2648 (2005). Where a motion challenges a perceived


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“defect in the integrity of the proceedings” under § 2254, a Rule 60(b) motion is

appropriate. The reasoning of Gonzalez v. Crosby has been extended to § 2255

motions which implicate similar concerns of successiveness. United States v.

Scott, 414 F.3d 815, 816 (7th Cir. 2005).

      With liberal construction, Mr. Bell may be said to be challenging the

mechanics of the disposition of his prior motion. Mr. Bell needs a COA to

proceed. Gonzalez, 125 S. Ct. at 2650 n.7. Where the district court dismisses a

petition on procedural grounds, a COA requires the inmate to demonstrate that it

is reasonably debatable whether (1) the petition states a valid claim of the denial

of a constitutional right, and (2) the district court’s procedural ruling is correct.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

      The district court’s resolution is not debatable at all. Given an abuse of

discretion standard of review, no reasonable jurist could conclude that the district

court abused its discretion in denying the Rule 60(b) motion, which in and of

itself was successive of the initial motion to reopen. Moreover, we had approved

of the district court’s handling of the matter as a § 2255 motion previously. Bell,

1999 WL 713320 at *1.

      We DENY IFP, DENY a COA, and DISMISS the appeal.

                                                Entered for the Court


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      Paul J. Kelly, Jr.
      Circuit Judge




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