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

                           FOR THE TENTH CIRCUIT                      February 8, 2016

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
WENDELL TODD JONES,

      Petitioner - Appellant,

v.                                                        No. 15-1414
                                              (D.C. No. 1:05-CV-00353-LTB-PAC)
AL ESTEP; THE ATTORNEY                                     (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,

      Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, HARTZ, and MORITZ, Circuit Judges.


      In 1989, a Colorado jury found Wendell Todd Jones guilty of several serious

crimes, including two counts of first-degree murder. We upheld the denial of his first

habeas petition challenging that state conviction in Jones v. Estep, 219 F. App’x 723,

725 (10th Cir. 2007). More than eight years later, he filed a “Motion to Set Aside,

Vacate, Judgment,” attacking the same conviction on the basis of the State’s alleged

suppression of (unspecified) evidence in violation of Brady v. Maryland, 373 U.S.

83, 87 (1963). See R. Vol. 1 at 7. He purported to file the motion in his former

      *
        This order is not binding precedent except under the doctrines of law of the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.
habeas case. Noting the latter procedural fact, the district court summarily denied the

motion as improperly filed in a case long since finally closed. Following the ensuing

denial of related motions for reconsideration,1 appointment of counsel, and recusal

for the same reason, Mr. Jones commenced this appeal. The district court denied his

requests for a certificate of appealability (COA) and leave to proceed on appeal in

forma pauperis (IFP), which he has renewed before this court. Concluding this

appeal to be legally frivolous, we deny a COA, deny IFP, and dismiss.

       The motion to set aside/vacate judgment filed by Mr. Jones actually had two

fatal threshold procedural deficiencies. First, as the district court noted, it was filed

in a closed case. And we note it advanced no reason justifying relief from the final

judgment entered in that case years ago. See generally Fed. R. Civ. P. 60(b)(4)-(6)

(specifying limited grounds for which relief from judgment may be obtained more

than a year after entry). Second, even if Mr. Jones had brought the motion as a new

stand-alone habeas proceeding challenging his state court conviction, it would have

been subject to summary dismissal as a second or successive petition lacking

authorization from this court under 28 U.S.C. § 2244(b). Nothing Mr. Jones argues

in his brief on appeal (designated as “Petition for a Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit”) raises a nonfrivolous issue—much
       1
        In his motion for reconsideration, Mr. Jones added numerous conclusory
references to ineffective assistance of state trial counsel. His briefing to this court
invokes even more constitutional objections directed at his state prosecution. The
addition of these matters to the Brady claim he initially asserted does not affect the
grounds for our disposition.


                                           -2-
less a debatable question warranting a COA—regarding the district court’s summary

rejection of his motion to set aside/vacate judgment and the similarly inappropriate

motions that followed. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (explaining

COA may issue under 28 U.S.C. § 2253(c)(2) only if prisoner demonstrates that

reasonable jurists would find district court’s disposition debatable or wrong).

      Accordingly, we deny a COA and dismiss this appeal from the district court’s

denial of Mr. Jones’ defective motion to set aside/vacate.2 In light of the legally

frivolous nature of this appeal, we also deny his motion to proceed IFP. See Watkins

v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008). He is required to immediately remit

the full amount of the filing fee notwithstanding the denial of a COA. See Clark v.

Oklahoma, 468 F.3d 711, 715 (10th Cir. 2006).


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




      2
         In Harbison v. Bell, 556 U.S. 180, 183 (2009), the Supreme Court held that
procedural orders relating to appointment of counsel fall outside the statutory
requirement for a COA, which applies only to orders disposing of “the merits of a
habeas corpus proceeding.” It thus appears Mr. Jones does not need a COA to appeal
the denial of his collateral procedural motions involving appointment of counsel and
recusal. But given the patent deficiency of his underlying motion to set aside/vacate,
we affirm the denial of such collateral motions without the need to order the State to
file an answer brief.


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