                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          October 11, 2006
                              FO R TH E TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                            Clerk of Court

    TH O MA S WO O D B ER RY ,

               Petitioner-A ppellant,
                                                            No. 05-3291
     v.                                              (D.C. No. 00-CV-3407-SAC)
                                                              (D . Kan.)
    LOU IS E. BRU CE, W arden; STATE
    OF KANSAS,

               Respondents-Appellees.



                               OR D ER AND JUDGM ENT *


Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.


          M r. W oodberry is a “frequent filer” in both the state and federal courts.

Here, he appeals from the district court’s denial of his Fed. R. Civ. P. 60(b)

motion, filed in his 28 U.S.C. § 2254 habeas case.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
                           Factual and Procedural H istory

         In 1979, M r. W oodberry was convicted in state court of three counts of

aggravated robbery and one count of aggravated battery. The Kansas Supreme

Court affirmed his conviction and sentence. In 1984, he was convicted of

aggravated battery, committed while on parole from his previous sentence. The

sentence for this offense was made to run consecutive to his previous sentence.

The Kansas Court of Appeals affirmed his 1984 conviction. In 1993,

M r. W oodberry pled guilty to one count of conspiracy to comm it aggravated

robbery, and one count of misdemeanor theft. His state court sentence for these

offenses was made to run concurrently to his two prior sentences.

         M r. W oodberry filed multiple state motions for post-conviction relief.

These w ere denied, or dismissed without opinion. M r. W oodberry then filed tw o

separate federal habeas corpus petitions, challenging the application of Kansas

statutes to his criminal history and to his 1979 and 1993 consecutive sentences,

and contending that his counsel had been ineffective by failing to advise him of

the effect of the statutes on the length of his sentences. The district court denied

the petitions and also denied his Fed. R. Civ. P. 59(e) motion for reconsideration.

M r. W oodberry appealed. W e granted a certificate of appealability (COA),

affirmed in part, and remanded for further consideration of his ineffective

assistance of counsel claims. Woodberry v. Bruce, 13 F. App’x 780 (10th Cir.

2001).

                                           -2-
      The district court thereafter stayed the case to permit Mr. W oodberry to

exhaust his ineffective assistance claims in state court. In two separate decisions,

the Kansas Court of Appeals rejected the ineffective assistance claims, finding

them procedurally barred, barred by laches, and/or lacking in merit. See

Woodberry v. State, 101 P.3d 727 (Kan. Ct. App. 2004); Woodberry v. State, No.

89, 193, 2003 W L 22990144 (Kan. Ct. App. Dec. 19, 2003). The Kansas Supreme

Court denied review.

      On June 10, 2004, the federal district court lifted its order staying

proceedings for exhaustion purposes and proceeded to adjudicate

M r. W oodberry’s ineffective assistance claims. 1 In an order dated November 9,

2004, the habeas court (1) upheld the state court’s application of procedural bar to

his ineffective assistance of counsel claim regarding his 1979 criminal case and

his claims regarding his 1993 criminal case; (2) upheld the state court’s

conclusion that those claims were without merit; and (3) denied habeas relief and

dismissed M r. W oodberry’s petition.

      On M arch 1, 2005, this court denied COA for M r. W oodberry’s appeal from

the district court’s order of November 9, 2004 and dismissed his appeal.

Woodberry v. Bruce, 124 F. App’x 623 (10th Cir. M ar. 1, 2005), cert. dismissed,



1
      In the meantime, M r. W oodberry filed another habeas petition, raising
essentially the same issues with respect to his 1984 conviction. W e affirmed the
judgment of the district court denying relief. Woodberry v. Hannigan, 37 F.
App’x 404 (10th Cir. 2002).

                                         -3-
125 S. Ct. 2552 (2005). On June 15, 2005, M r. W oodberry filed in district court

his “M otion To Vacate Judgement (Fraud Upon the Court) ‘Pursuant To Rule

60(b)’.” This filing attacked both the disposition of M r. W oodberry’s claims in

state court and the habeas court’s application of procedural bar. As a basis for his

contention of “fraud on the [habeas] court,” M r. W oodberry asserted that the state

had fraudulently misrepresented that procedural bar applied to his case, because

the Kansas courts do not uniformly apply the procedural bar to which his state

court applications w ere subjected. He also asserted that the state had engaged in

fraud by entering unspecified evidence it knew to be fraudulent into his federal

habeas proceedings.

      On July 7, 2005, the district court denied M r. W oodberry’s Rule 60(b)

motion, reasoning that such motions are not to be used simply to reiterate

arguments previously made; that the Tenth Circuit had already upheld the

dismissal on procedural grounds of M r. W oodberry’s petition; and that the motion

presented “no legal basis to grant additional review.” Id., doc. 40, at 2. The

district court further ordered M r. W oodberry to seek permission before filing any

further pleadings in the case. M r. W oodberry appealed from the district court’s

July 7, 2005 order.

                                      Analysis

      M r. W oodberry raised four claims in his Rule 60(b) motion. He first

contended that he was wrongfully denied a CO A to appeal from the district

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court’s November 9, 2004, order. Second, he argued that the state courts and the

federal district court improperly applied procedural bar to his claims. Third, he

asserted that “fraudulent evidence” w as presented in the habeas proceedings.

Finally, he contended that the district court should have granted him an

evidentiary hearing on his claims.

      Under our procedure for evaluating an appeal from the denial of a Rule

60(b) motion in a habeas case, we first ask whether the claims asserted in the

motion are “true” 60(b) claims, or are second or successive habeas claims. See

Spitznas v. Boone, No. 05-6236, 2006 W L 2789868, at *1 (10th Cir. Sept. 29,

2006). If the claims are true 60(b) claims, we review the district court’s decision

as we do any other case involving the denial of Rule 60(b) relief. See id. at *1 -

*2. If the claims are second or successive habeas claims, however, then we

cannot review the district court’s decision on the merits, because the district court

lacked jurisdiction to rule on them, and should have transferred them to this court

for authorization under 28 U.S.C. § 2244(b). See id. at *2

      1. CO A claim

      Both the district court and this court denied M r. W oodberry a COA to

appeal from the district court’s order of November 9, 2004, denying his habeas

petition. In his Rule 60(b) motion, he challenged these decisions on his requests

for COA, contending that he should have been granted a CO A to appeal from the

district court’s order. The issue of whether this issue represents a second habeas

                                         -5-
petition or a true 60(b) claim is a difficult one. Since the district court denied

relief in its underlying order on procedural grounds, to obtain a COA to appeal

that denial, M r. Woodberry had to show both that the district court’s ruling

upholding the procedural bar was debatable among jurists, and that the issue of

whether the underlying claims had merit was also debatable among jurists. See

Slack v. M cDaniel, 529 U.S. 473, 484 (2000). M r. W oodberry in fact argued both

that he should have received a COA on the procedural bar issue, and that his

underlying claims had merit. His attack on the denial of a CO A on the procedural

bar issue represents a “true” Rule 60(b) claim, for which authorization is not

required. See Gonzalez v. Crosby, 125 S. Ct. 2641, 2648 n.4 (2005). His

contention that his underlying habeas claims had merit sufficient to justify the

issuance of a CO A, however, could be viewed as the reassertion of his habeas

claims, which w ould be barred under 28 U.S.C. § 2244(b).

      Fortunately, we need not untangle this problem, because a threshold,

jurisdictional issue bars this claim in any event. M r. W oodberry’s attack on the

district court’s denial of COA was mooted by our denial of COA on the same

claims and our dismissal of his prior appeal. A controversy becomes moot when

a court can no longer grant any effective relief. Osborn v. Durant Bank & Trust

Co. (In re Osborn), 24 F.3d 1199, 1203 (10th Cir. 1994). The COA statute

permits a petitioner to address his arguments in favor of a CO A to the court of

appeals, irrespective of a denial in the district court. 28 U.S.C. § 2253(c).

                                          -6-
M r. W oodberry did so, this court considered his arguments, and it denied COA

and dismissed his appeal. This denial and dismissal divested the district court of

any power to grant further, effective relief in the form of granting him a COA as

to the issues he previously appealed and lost on. The district court should

therefore have dismissed this Rule 60(b) claim as moot.

         2. Procedural default

         M r. W oodberry’s claim that procedural default was inappropriate represents

a “true” ground for Rule 60(b) relief, because it asserts only that the district

court’s ruling that precluded a determination on the merits (due to state

procedural bar) was in error. See Gonzalez, 125 S. Ct. at 2648 n.4.

M r. W oodberry must obtain a COA to appeal the district court’s denial of this

claim.

         The Kansas Court of Appeals noted that M r. W oodberry had filed several

previous petitions for post-conviction relief and had failed to show exceptional

circumstances that would justify his attempt to raise, in yet another such

application, twenty-five years after the fact, his claims of ineffective assistance of

counsel. Woodberry, 101 P.3d at 174-75. The district court relied on this

procedural bar to bar his claims in the habeas proceeding. M r. W oodberry fails to

present any argument that would raise a debatable issue concerning whether the

district court’s ruling upholding the procedural bar applied by the Kansas state




                                          -7-
courts was correct. W e therefore deny COA on this claim. See Slack v.

M cDaniel, 529 U.S. 473, 484 (2000).

      3. “Fraudulent evidence” claim

      M r. W oodberry also raised a claim that “fraudulent” evidence was

presented at his habeas proceedings. He failed to specify what this fraudulent

evidence consisted of. Assuming that his allegations of fraud related only to the

federal habeas court proceedings, and were separate and distinct from a claim of

fraud in the state court proceedings, this claim would present a true 60(b) claim.

See Spitznas, 2006 W L 2789868, at *2. Nevertheless, M r. W oodberry does not

meet the standard for obtaining the required COA as to this claim, because he

fails to specify what evidence was fraudulent and instead makes only conclusory

allegations. Assuming, alternatively, that he raised a claim of fraud the

disposition of which would be inextricably intertwined with the merits of his

habeas petition, such a claim would constitute a second or successive habeas

petition, which we deny him relief to file, because he failed to meet the standards

described in 28 U.S.C. § 2244 for filing such a claim.

      4. Evidentiary hearing claim

      M r. W oodberry’s claim that he was entitled to an evidentiary hearing, is a

true 60(b) claim. W e deny him a COA on this claim, however, as he fails to show

his entitlement to an evidentiary hearing under the applicable standards.




                                        -8-
                                    Conclusion

      For the foregoing reasons, we VACATE in part, for lack of jurisdiction, the

district court’s decision denying on the m erits the portion of M r. W oodberry’s

Rule 60(b) motion that was moot. To the extent M r. W oodberry presented

allegations of fraud that w ere intertwined with the merits of his habeas claims, w e

V A CA TE the district court’s decision denying such claims and DENY

M r. W oodberry leave to file a second or successive habeas petition raising such

claims, and we thus D ISM ISS the portion of his Rule 60(b) motion properly

deemed a second or successive petition. W e DENY M r. W oodberry’s request for

a COA to appeal the district court’s decision denying on the merits the portion of

his Rule 60(b) motion challenging the habeas court’s procedural disposition of his

§ 2254 claims, defects in the integrity of the habeas corpus proceedings, and the

denial of an evidentiary hearing, which constitute true Rule 60(b) issues; and w e

thus DISM ISS that portion of his appeal. M r. W oodberry’s request to proceed on

appeal in form a pauperis is granted.



                                                    Entered for the Court



                                                    David M . Ebel
                                                    Circuit Judge




                                         -9-
