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

                            FOR THE TENTH CIRCUIT                            October 3, 2019
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 SALEEM EL-AMIN,

       Petitioner - Appellant,

 v.                                                          No. 19-3146
                                                    (D.C. No. 5:18-CV-03264-JWL)
 N.C. ENGLISH,                                                 (D. Kan.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

      Saleem El-Amin, a habeas petitioner proceeding pro se,1 seeks to appeal the

district court’s order denying him relief from judgment under Federal Rule of Civil

Procedure 60(b). To do so, El-Amin must first obtain a certificate of appealability

(COA). See 28 U.S.C. § 2253(c)(1); Eldridge v. Berkebile, 791 F.3d 1239, 1243–44

(10th Cir. 2015) (holding that we treat individuals convicted in District of Columbia

Superior Court as state prisoners who must obtain COA to appeal denial of federal

habeas relief); Spitznas v Boone, 464 F.3d 1213, 1217–18 (10th Cir. 2006) (holding



      *
         This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         We liberally construe El-Amin’s pro se pleadings, but we won’t act as his
advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
that COA is required to appeal district court’s order denying Rule 60(b) motion in

habeas proceeding). For the reasons explained below, we deny El-Amin’s request for

a COA and dismiss this matter.

      In 2014, a jury convicted El-Amin of armed robbery. During the trial, the

judge opted not to instruct the jury on the lesser-included offense of assault with a

dangerous weapon. The trial judge sentenced El-Amin to 120 months in prison. El-

Amin appealed, arguing in part that the trial judge should have given the lesser-

included-offense instruction. The District of Columbia Court of Appeals (DCCA)

rejected that argument and affirmed. See Elamin v. United States, No. 14-CF-1134

(D.C. May 11, 2017) (unpublished).

      El-Amin then filed this 28 U.S.C. § 2254 petition in federal district court,

raising two ineffective assistance of counsel (IAC) claims. He alleged that his

appellate counsel failed to (1) challenge the district court’s decision not to instruct

the jury on a lesser-included offense and (2) argue that the District of Columbia

improperly charged him with the single crime of armed robbery under two different

statutes, D.C. Code § 22-2801 and § 22-4502.

      The district court rejected El-Amin’s first IAC claim because it was

indisputable that his appellate attorney did raise a lesser-included-offense argument;

indeed, the DCCA addressed and rejected that argument. Next, the district court

concluded that El-Amin’s second IAC claim was unexhausted and procedurally

barred because El-Amin failed to present it to the District of Columbia courts. See

§ 2254(b)(1)(A) (requiring petitioner to exhaust state-court remedies before federal

                                            2
court can consider habeas petition). It also rejected this claim on the merits because

the DCCA has held that it’s proper to charge a defendant with the single crime of

armed robbery under both § 22-2801 (which establishes the elements of robbery) and

§ 22-4502 (which establishes an additional penalty for committing crime while

armed). See Fadero v. United States, 180 A.3d 1068, 1073 (D.C. 2018) (explaining

that § 22-4502 can combine with other sections of D.C. Code to form “single,

chargeable offense”). Thus, the district court denied El-Amin’s § 2254 petition and

declined to issue a COA. El-Amin sought to appeal the denial of his § 2254 petition,

but we denied El-Amin’s request for a COA. See Order, El-Amin v. English, No. 19-

3063 (10th Cir. Sept. 13, 2019).

      In addition to attempting to appeal the denial of his habeas petition, El-Amin

filed a Rule 60(b) motion in district court, seeking relief from the district court’s

judgment. See Spitznas, 464 F.3d at 1215–16 (holding that habeas petitioner can file

Rule 60(b) motion to challenge “a procedural ruling of the habeas court” or “a defect

in the integrity of the federal habeas proceeding”). In particular, El-Amin asserted

that the district court erred in holding that his second IAC claim was unexhausted and

therefore procedurally defaulted. He further asserted a defect in the habeas

proceeding, contending that the district court failed to address his second IAC claim.

      The district court denied relief. It noted that relief under Rule 60(b) requires

“extraordinary circumstances” that “will rarely occur in the habeas context.” R. vol.

2, 37–38 (second quoting Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)). And it

concluded that El-Amin didn’t show any extraordinary circumstances or otherwise

                                            3
meet any of the Rule 60(b) standards for relief from judgment. Thus, the district court

denied the motion and declined to issue a COA.2

      El-Amin now seeks a COA from this court. We may issue a COA only if El-

Amin “has made a substantial showing of the denial of a constitutional right.”

§ 2253(c)(2). When, like here, a ruling on a Rule 60(b) motion does not address the

merits of a petitioner’s constitutional claims, we “have ‘applied the two-part COA

standard the Supreme Court first articulated’ in Slack v. McDaniel, [529 U.S. 473

(2000)].” Clay v. Smith, 365 F. App’x 98, 102 (10th Cir. 2010) (unpublished)

(quoting Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir. 2007), abrogated in part

on other grounds by Harbison v. Bell, 556 U.S. 180 (2009)). That is, to obtain a

COA, El-Amin must show both “that jurists of reason would find it debatable

whether the [§ 2254] petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling” on the Rule 60(b) motion. Slack, 529 U.S. at 484; see

also Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001) (per curiam) (concluding

that court will issue COA on denial of Rule 60(b) motion if petitioner establishes

both that “jurists of reason would find it debatable whether the underlying habeas



      2
         The district court later denied El-Amin’s second Rule 60(b) motion. El-Amin
failed to file a notice of appeal from that order, but we construe his opening brief as a
notice of appeal. See Smith v. Barry, 502 U.S. 244, 245 (1992) (holding that appellate
brief was effective as notice of appeal). Nevertheless, in that opening brief, El-Amin
fails to challenge any part of the district court’s order denying his second Rule 60(b)
motion. We therefore hold that he waived any such challenge. See Grant v.
Trammell, 727 F.3d 1006, 1025 (10th Cir. 2013).
                                            4
petition . . . states a valid claim of the denial of a constitutional right” and that

“jurists of reason would find it debatable whether the district court abused its

discretion in denying the Rule 60(b) motion”). As explained below, we begin (and

ultimately end) our analysis with the procedural half of this standard, concluding that

El-Amin fails to establish that the district court’s Rule 60(b) ruling was debatable.

       Under Rule 60(b), a court may relieve a movant from a final judgment for a

variety of reasons, including “any . . . reason that justifies relief.” Fed. R. Civ. P.

60(b). Yet, as the district court noted in this case, “[r]elief under Rule 60(b) is

discretionary and is warranted only in exceptional circumstances.” Van Skiver v.

United States, 952 F.2d 1241, 1243 (10th Cir. 1991). And we review a district court’s

order denying relief under Rule 60(b) for abuse of discretion. Id. at 1242–43. Thus,

when we combine the abuse-of-discretion standard with the procedural portion of the

COA standard from Slack, “the question . . . is whether a jurist of reason would find

it debatable that the district court abused its discretion” when it rejected the two

arguments in El-Amin’s Rule 60(b) motion. Bird v. Wyoming Attorney Gen., 2019

WL 2879908, at *2 (10th Cir. July 3, 2019) (unpublished).

       El-Amin’s primary argument on appeal repeats the primary argument in his

Rule 60(b) motion: he contends that the district court erred when it ruled that his

second IAC claim was unexhausted and thus procedurally defaulted. In support, he

cites County Court of Ulster County v. Allen, 442 U.S. 140 (1979), and Crease v.

McKune, 189 F.3d 1188 (10th Cir. 1999). But these two cases are inapposite. Both

involve issues of procedural bar that turned on whether a state court decided an issue

                                             5
on procedural grounds rather than on the merits. See Allen, 442 U.S. at 148–49;

Crease, 189 F.3d at 1192. But the district court’s ruling here turned on exhaustion,

which is about whether a petitioner presented a particular argument to the state court.

See, e.g., Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (noting that to

exhaust claim, petitioner must “fairly present[]” claim to state court (quoting Picard

v. Connor, 404 U.S. 270, 275 (1971))). And El-Amin nowhere argues that he

presented his second IAC claim to the District of Columbia courts. Thus, the

exhaustion argument in El-Amin’s Rule 60(b) motion lacks merit, and reasonable

jurists therefore could not debate whether the district court abused its discretion when

it rejected this argument and denied relief under Rule 60(b). See Slack, 529 U.S. at

484.

       El-Amin also briefly asserts, as he did in his Rule 60(b) motion, that the

district court failed to address his claim that appellate counsel was ineffective in

failing to challenge the statutory basis for his conviction. But the district court

obviously ruled on this claim: it found that El-Amin failed to exhaust this claim, and

it further denied this claim on the merits. Thus, El-Amin’s second argument also

fails to establish that reasonable jurists could debate whether the district court abused

its discretion when it denied El-Amin’s Rule 60(b) motion. See Slack, 529 U.S. at

484.




                                            6
Accordingly, we deny El-Amin’s COA request and dismiss this matter.


                                  Entered for the Court


                                  Nancy L. Moritz
                                  Circuit Judge




                                 7
