                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              July 3, 2007
                                   TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                              Clerk of Court


 GARY BRADFORD CONE,

           Petitioner-Appellant,
 v.                                                           No. 07-6015
 MICHAEL DUTTON,                                         (D.C. No. CV-91-99-C)
                                                           (W. D. Oklahoma)
           Respondent-Appellee.




               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.




       Gary Cone (Cone) seeks a Certificate of Appealability (COA) to appeal the district

court’s dismissal of his renewed motion for relief from judgment pursuant to Federal Rule

of Civil Procedure 60(b). Because Cone has failed to make a substantial showing of the

denial of a constitutional right, we deny a COA and dismiss the appeal.

                                             I.

       In 1972, Cone pled guilty to three counts of armed robbery in Oklahoma county.

Cone did not appeal this conviction. In 1990, after Cone was convicted of capital murder

and sentenced to death in Tennessee, he filed an application for post-conviction relief in


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
Oklahoma alleging that his guilty plea conviction was invalid because he was not advised

of his right against self-incrimination as set forth in Boykin v. Ala., 395 U.S. 238 (1969).

The Oklahoma Court of Criminal Appeals (OCCA) affirmed the denial of Cone’s

application for post-conviction relief because his application was procedurally barred by

his failure to file a direct appeal.

       In 1991, Cone filed a petition for habeas corpus relief pursuant to 28 U.S.C. §

2254, once again raising his Boykin claim. Cone sought habeas relief on his Oklahoma

robbery convictions because they were used by the jury in his Tennessee murder trial as

an aggravating factor to impose the death sentence. The district court denied his petition

after finding no error in the OCCA’s application of the procedural bar and concluding that

Cone failed to demonstrate sufficient “cause and prejudice” to invoke federal review of a

procedurally barred claim. See Coleman v. Thompson, 501 U.S. 722, 750 (1991)

(holding that federal habeas review of claims that have been barred on the basis of an

independent and adequate state procedural rule are barred unless petitioner can show

cause for the default and actual prejudice from alleged violation of federal law). This

court agreed that Cone failed to show the requisite “cause and prejudice” and affirmed.

See Cone v. Dutton, No. 91-6325, 1992 WL 181984 (10th Cir. July 30, 1992).

       In October of 1997, Cone filed a motion with the district court pursuant to Rule

60(b) requesting relief from the procedural bar and alleging that Oklahoma’s direct appeal

rule was not firmly established and evenhandedly applied to all cases at the time of his

guilty plea in 1972. The district court denied this motion as a successive habeas petition

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under § 2244(b) and as untimely under Rule 60(b). This court, by order filed October 9,

1998, vacated the district court’s order denying a leave to file a successive habeas for lack

of jurisdiction and, remanded the matter to the district court with directions to dismiss the

unauthorized second habeas. We relied on Lopez v. Douglas, 141 F.3d 974, 975 (10th

Cir. 1998), to conclude that Cone’s Rule 60(b) motion was actually a successive habeas

petition and his failure to obtain prior authorization from this court before filing his

petition in the district court deprived the district court of jurisdiction. See 28 U.S.C. §

2244(b)(3)(A).

       In Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006), this court overruled

Lopez v. Douglas in light of the intervening Supreme Court decision in Gonzalez v.

Crosby, 545 U.S. 524 (2005), and held that certain “true” Rule 60(b) motions should not

be treated as successive habeas petitions. Cone then filed a renewed Rule 60(b) motion in

December of 2006, once again asserting that his Boykin claim was not procedurally

barred. The district court properly treated this motion as a “true” Rule 60(b) motion, but

denied it after concluding that Cone’s claim had already been considered and rejected by

the district court and this court and Cone failed to provide new evidence or argument to

support his claim. See Spitznas, 464 F.3d at 1215-16 (concluding that a “true” Rule 60(b)

motion “challenges only a procedural ruling of the habeas court which precluded a merits

determination of the habeas application” and noting that dismissal based on procedural

bar falls within this category). The district court denied Cone’s request for a COA in

January of 2007. See id. at 1217-18 (requiring movant to obtain COA when district court

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denies Rule 60(b) motion in habeas case).

                                              II.

       This court can issue a COA only “if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

       In cases like this one, where the decision appealed from involves a procedural
       ruling of the district court, a COA may only issue if “the prisoner shows, at least,
       that jurists of reason would find it debatable whether the 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.”

Spitznas, 464 F.3d at 1225 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

After careful review, we conclude that Cone is not entitled to a COA and dismiss his

appeal.

       First, Cone’s Rule 60(b) motion is untimely because it seeks relief from a

judgment entered in 1991. Although he does not specify on which Rule 60(b) ground he

brings his motion, grounds (1), (2), and (3) require the motion to be brought “not more

than one year after the judgment, order, or proceeding was entered or taken.” See F ED. R.

C IV. P. 60(b)(1), (2), and (3). Ground (6) permits a court to relieve a party from a final

judgment for “any other reason justifying relief from the operation of the judgment,” if

the motion is filed within a reasonable time. F ED. R. C IV. P. 60(b)(6). A delay of sixteen

years is not reasonable. Finally, ground (4) does not contain a timeliness provision, but

permits a court to grant relief from a judgment that is void. Spitznas, 464 F.3d at 1225.

This provision does not apply to Cone’s case.

       Cone’s motion also fails for the reasons articulated by the district court. Cone

                                             -4-
alleges that his Boykin claim is not procedurally barred because: (1) the Oklahoma direct

appeal rule was established at least seven years after his conviction; and (2) the Oklahoma

courts did not evenhandedly apply this rule to similarly situated defendants. He claims

that neither this court nor the district court ever addressed this “adequacy” argument and

that the district court’s determination that his Rule 60(b) motion should be denied was

based on this clearly erroneous factual finding. He concludes that because the district

court’s finding was clearly erroneous, he is entitled to a COA.

       The government responds that the district court was correct in denying Cone’s

motion because both this court and the district court previously considered and rejected

his argument. We agree.

       The record shows that in rejecting Cone’s petition for habeas corpus in 1991, the

district court cited the proper “cause and prejudice” standard to overcome a state

procedural default and determined that Cone failed to show cause and prejudice for his

failure to directly appeal his guilty plea. The court noted that “[t]he state court records

clearly indicate that [Cone] was given notice of the appeals procedure existing at that time

and of his right to an appeal.” Record on Appeal, (ROA), Doc. 18 at 4. The record also

shows that in affirming the district court, this court also considered the adequacy of the

procedural bar at issue when it stated:

       [w]e agree with the district court that Mr. Cone has not shown the requisite “cause
       and prejudice” for review of this issue. As the district court found, Mr. Cone was
       given adequate notice of the appeals procedure in effect at the time of his
       conviction and his right to appeal. He did not pursue an appeal of these issues and
       therefore is procedurally barred from post-conviction relief under Oklahoma law.

                                             -5-
See Cone, 1992 WL 181984 at *2. This court also concluded that Cone’s Boykin claim

had little merit because the summary of facts form reviewed by the district court revealed

that Cone understood the consequences of his guilty plea and his right to appeal and this

“Circuit has long held that a summary of facts form alone may be sufficient to establish a

knowing and voluntary plea.” Id.

       Because Cone’s Rule 60(b) motion is untimely and the record shows that both this

court and the district court have previously considered and rejected Cone’s argument, the

district court properly dismissed his Rule 60(b) motion. Cone has failed to show that

“jurists of reason would find it debatable whether the district court was correct in its

procedural ruling,” and is not entitled to a COA. Spitznas, 464 F.3d at 1225.

                                             III.

       We DENY a COA and DISMISS the appeal.


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




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