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

                             FOR THE TENTH CIRCUIT                         July 3, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
ANDREW JOHN YELLOWBEAR, JR.,

              Petitioner - Appellant,

v.                                                         No. 14-8016
                                                  (D.C. No. 2:06-CV-00082-ABJ)
WYOMING ATTORNEY GENERAL,                                   (D. Wyo.)
Peter Michael; FREMONT COUNTY
SHERIFF,

              Respondents - Appellees.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and HARTZ, Circuit Judges.


       Andrew John Yellowbear, Jr., a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s decision that

construed his Fed. R. Civ. P. 60(b) motion as an unauthorized second or successive

28 U.S.C. § 2254 habeas petition and denied it. We deny a COA, but we vacate the

district court’s judgment and remand with instructions to dismiss Mr. Yellowbear’s

petition for lack of jurisdiction.


*
       This order is not binding precedent except under the doctrines of law of the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.
      Mr. Yellowbear was charged with first-degree murder following the death of

his 22-month-old daughter. During his trial, he filed a petition for habeas corpus

relief pursuant to 28 U.S.C. § 2241, arguing that the crime scene was in “Indian

Country,” and the state courts, therefore, lacked jurisdiction over his crime. At the

conclusion of the trial, Mr. Yellowbear was convicted and sentenced to life in prison.

      Shortly thereafter, the district court entered an order denying the § 2241

petition. This court reversed the denial of the § 2241 petition and remanded to the

district court. Following remand, Mr. Yellowbear recharacterized his petition as one

being brought pursuant to 28 U.S.C. § 2254. He later voluntarily dismissed two

claims. The remaining claim challenged the Wyoming Supreme Court’s

determination that the crime scene was not in Indian Country. The district court

subsequently denied the petition, and we affirmed the district court’s decision.

See Yellowbear v. Att’y Gen. of Wyo., 380 F. App’x 740, 740 (10th Cir. 2010).

      In January, Mr. Yellowbear filed a motion seeking relief pursuant to

Fed. R. Civ. P. 60(b). The district court concluded that the Rule 60(b) motion

constituted an attempt to file a second or successive § 2254 claim without prior

authorization and denied the motion.

      Mr. Yellowbear now seeks a COA to appeal from the district court’s denial.

To obtain a COA, Mr. Yellowbear must show “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional




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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).

       A prisoner may not file a second or successive § 2254 habeas claim unless he

first obtains an order from the court of appeals authorizing the district court to

consider the claim. 28 U.S.C. § 2244(b)(3)(A). In the absence of such authorization,

a district court lacks jurisdiction to address the merits of a second or successive

§ 2254 claim. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

A 60(b) argument should be treated as a second or successive § 2254 claim “if it in

substance or effect asserts or reasserts a federal basis for relief from the petitioner’s

underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006).

A 60(b) argument should not be treated as a successive § 2254 claim if it “challenges

a defect in the integrity of the federal habeas proceeding.” Id. at 1216.

       Here, the district court explained that Mr. Yellowbear’s, “Rule 60(b)

motion . . . once again, in effect, challenges the jurisdiction of the Wyoming state

district court in which he was convicted, a challenge he has previously asserted at

least twice in this Court.” R., Vol. I at 2550. Because Mr. Yellowbear’s Rule 60(b)

motion was not challenging a defect in the integrity of the habeas proceeding, but

was instead challenging the legality of his conviction, the district court concluded the

motion must be considered a second or successive § 2254 petition. The district court

noted that it did not have jurisdiction to determine the merits of a successive § 2254




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petition and determined that it was not in the interest of justice to transfer the petition

to this court, noting, among other reasons, that Mr. Yellowbear’s claim was not likely

to have merit. The district court then denied the Rule 60(b) motion.

       In his COA application, Mr. Yellowbear continues to argue the merits of the

claim that he brought in his Rule 60(b) motion—that the state courts lacked

jurisdiction over the crime for which he was convicted—which is the same claim he

brought in his first § 2254 petition. He fails to adequately explain how the district

court erred in concluding that his Rule 60(b) motion was an unauthorized second or

successive § 2254 petition. Because Mr. Yellowbear’s Rule 60(b) motion reasserts a

federal basis for relief from his underlying conviction, reasonable jurists could not

debate that the district court was correct in its procedural ruling to treat the motion as

an unauthorized second or successive § 2254 petition. For that reason, we deny a

COA. We also deny Mr. Yellowbear’s motion for appointment of counsel.

       We note, however, that the district court’s order reflects that it is denying

Mr. Yellowbear’s Rule 60(b) motion. Because the district court determined that the

Rule 60(b) motion was an unauthorized second or successive § 2254 petition, the

district court lacked jurisdiction to rule on the merits. See Cline, 531 F.3d at 1251.

Accordingly, we vacate the district court’s judgment and remand with instructions to




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dismiss Mr. Yellowbear’s unauthorized second or successive § 2254 petition for lack

of jurisdiction.

                                             Entered for the Court



                                             ELISABETH A. SHUMAKER, Clerk




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