                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALS                 April 8, 2014
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                      No. 13-1357
                                            (D.C. Nos. 1:07-CV-02002-RPM and
JACK DOWELL,                                      1:01-CR-00395-RPM-3)
                                                       (D. Colorado)
             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      In April 2003, a jury found Petitioner Jack Dowell guilty of destroying

government property by fire and forcibly interfering with IRS employees and

administration. United States v. Dowell, 430 F.3d 1100, 1104 (10th Cir. 2005).

His convictions were affirmed on direct appeal. Id. On September 24, 2007,

Dowell filed a post-conviction motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255, raising fifteen claims of ineffective assistance of

counsel. After holding an evidentiary hearing, the district court denied the

motion in a ruling from the bench. This court denied Dowell’s request for a
certificate of appealability (“COA”). United States v. Dowell, 388 F. App’x 781,

785 (10th Cir. 2010).

      After filing several additional post-judgment motions, Dowell sought

authorization from this court to file a second or successive § 2255 motion.

Concluding the district court had failed to rule on seven of the ineffective

assistance claims raised in the § 2255 motion, this court held that Dowell did not

need authorization to pursue his claim that the district court committed procedural

error by failing to consider and rule on those claims.

      Dowell then filed a motion pursuant to Rule 60(b)(4) with the district court,

asking that court to declare its order denying the § 2255 motion void because the

procedural irregularities violated his right to due process. The district court

refused to grant the relief requested by Dowell, but corrected the procedural error

by addressing the seven ineffective assistance claims on the merits. Concluding

Dowell was not entitled to relief on any of the claims, the district court entered

judgment denying Dowell’s § 2255 motion in its entirety.

      Dowell is before this court seeking a COA so he can appeal the disposition

of his Rule 60(b) motion. Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th Cir.

2006) (“If the district court correctly treated the motion . . . as a true Rule 60(b)

motion and denied it, we will require the movant to obtain a certificate of

appealability (COA) before proceeding with his or her appeal.” (quotation

omitted)). To be entitled to a COA, Dowell must make “a substantial showing of

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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 [motion] 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). Dowell must also show “that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district

court dismisses habeas claims on procedural grounds, a petitioner is entitled to a

COA only if he shows both that reasonable jurists would find it debatable whether

he had stated a valid constitutional claim and debatable whether the district

court’s procedural ruling was correct). In evaluating whether Dowell 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. Although Dowell 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 Dowell’s appellate briefs, the district court’s order,

and the entire record on appeal pursuant to the framework set out by the Supreme

Court and concludes Dowell is not entitled to a COA. The district court did not,

as Dowell argues, recharacterize his Rule 60(b) motion as a § 2255 motion.

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Instead, the court recognized that Dowell cannot obtain the relief he seeks

pursuant to Rule 60(b)(4) because several of the claims raised in his § 2255

motion have already been fully adjudicated. The court, therefore, treated the

motion as one filed pursuant to Rule 60(b)(6) and granted Dowell the only relief

possible—correction of the procedural error by the adjudication of the seven

ineffective assistance claims that were overlooked when the § 2255 motion was

first considered. In his application for a COA, Dowell does not challenge the

district court’s disposition of those seven claims.

      Accordingly, we deny Dowell’s request for a COA and dismiss this appeal.

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

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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