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

                           FOR THE TENTH CIRCUIT                       January 31, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ROBERT EARL JACKSON,

             Petitioner−Appellant,

v.                                                         No. 12-5204
                                              (D.C. No. 4:04-CV-00195-CVE-FHM)
REGINALD HINES, Warden,                                    (N.D. Okla.)

             Respondent−Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, TYMKOVICH, and MATHESON, Circuit Judges.


      Petitioner Robert Earl Jackson, a state prisoner proceeding pro se, seeks to

appeal the district court’s order dismissing his post-judgment motion pursuant to

Fed. R. Civ. P. 60(b) for lack of jurisdiction. We deny him a certificate of

appealability (COA) and dismiss this proceeding.

      Mr. Jackson was convicted in state court by a jury of two counts of assault and

battery upon a police officer and one count of unlawful possession of a controlled

drug. He was sentenced to two ten-year terms of imprisonment on the assault-and-



*
       This order is not binding precedent except under the doctrines of law of the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.
battery counts and to twelve years’ imprisonment on the drug charge. The state court

ordered that all of his sentences were to be served consecutively.

      In 2004, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254.

After permitting him to amend the petition numerous times, the district court

eventually denied it. Mr. Jackson appealed to this court. We denied him a COA and

dismissed his appeal. Jackson v. Hines, 268 F. App’x 773, 779 (10th Cir. 2008). The

Supreme Court denied certiorari.

      Two and one-half years later, Mr. Jackson filed a motion for relief under

Fed. R. Civ. P. 60(b) together with another § 2254 petition. On October 6, 2011, the

district court dismissed both the Rule 60(b) motion and the § 2254 petition, reasoning

that each of them constituted a second or successive § 2254 petition filed without

prior authorization from this court. Mr. Jackson did not appeal from this dismissal.

Instead, he filed three more post-judgment motions: a motion to alter or amend the

district court’s judgment, which the district court dismissed on December 19, 2011;

another Rule 60(b) motion, which the district court dismissed on October 17, 2012;

and a motion to alter or amend the October 17, 2012 dismissal, which the district

court denied on November 7, 2012.

      Our first task is to determine which of the many orders entered by the district

court is before us on appeal. On November 26, 2012, Mr. Jackson filed a notice of

appeal to this court “from the final judgment entered against him in this action.”

R. at 173. This notice of appeal thus purported to appeal only from a single “final


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judgment.” It was timely to appeal from the dismissal of his latest Rule 60(b) motion

along with the denial of his motion to alter or amend. See Fed. R. App. P.

4(a)(4)(A)(iv) (timely motion to alter or amend judgment causes time to file appeal to

run from order disposing of motion); Venable v. Haislip, 721 F.2d 297, 299 (10th Cir.

1983) (per curiam) (timely-filed motion to alter or amend tolled time to appeal from

denial of Rule 60(b) motion). It did not represent a timely notice of appeal, however,

from earlier orders entered in the case. We therefore consider only Mr. Jackson’s

appeal from the dismissal of his latest Rule 60(b) motion and from the denial of his

motion to alter or amend.

      To pursue his appeal from either order, Mr. Jackson must obtain a COA.

28 U.S.C. § 2253(c)(1)(A). We may grant him a COA to appeal the dismissal of his

Rule 60(b) motion only if reasonable jurists could debate whether (1) the district

court’s jurisdictional ruling was correct and (2) the allegations in the habeas

application are sufficient to state a valid constitutional claim. See Slack v. McDaniel,

529 U.S. 473, 484 (2000).

      The district court dismissed Mr. Jackson’s Rule 60(b) motion because it

determined that the motion constituted “a substantive challenge to the validity of his

Judgment and Sentence entered in state court” and therefore “qualifies as a

successive petition for writ of habeas corpus filed without prior authorization from

the Tenth Circuit Court of Appeals.” R. at 162. A prisoner’s post-judgment motion

should be treated like a second or successive § 2254 motion if it asserts or reasserts


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claims of error involving the prisoner’s conviction. See Gonzalez v. Crosby,

545 U.S. 524, 530-32, 538 (2005); Spitznas v. Boone, 464 F.3d 1213, 1215-16

(10th Cir. 2006). “That is not the case, however, when a Rule 60(b) motion

attacks . . . some defect in the integrity of the federal habeas proceedings.” Gonzalez,

545 U.S. at 532. In that case, the motion is a “true” Rule 60(b) motion, and should

not be treated as a second or successive petition. See Spitznas, 464 F.3d at 1215-16.

      In Spitznas, this court provided “[s]ome examples of Rule 60(b) motions that

should be treated as second or successive habeas petitions because they assert or

reassert a federal basis for relief from the underlying conviction.” Id. at 1216. These

include

      a motion seeking to present a claim of constitutional error omitted from
      the movant’s initial habeas petition; a motion seeking leave to present
      newly discovered evidence in order to advance the merits of a claim
      previously denied; or a motion seeking vindication of a habeas claim by
      challenging the habeas court’s previous ruling on the merits of that
      claim.

Id. (internal brackets, citations, and quotation marks omitted).

      Notwithstanding the arguments Mr. Jackson now makes in his combined

opening brief and application for COA, the assertions in his Rule 60(b) motion all

appear to fall within one or more of these categories. See R. at 107-36. In light of

this fact, he fails to demonstrate that reasonable jurists could debate the correctness

of the district court’s conclusion that his Rule 60(b) motion was in fact an

unauthorized second or successive § 2254 petition. Also in light of the foregoing, the

district court did not err in denying the motion to alter or amend.

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       We therefore deny Mr. Jackson a COA and dismiss this appeal. We also deny

his application to proceed in forma pauperis, and order him to remit the full amount

of the filing fee.

                                               Entered for the Court


                                               ELISABETH A. SHUMAKER, Clerk




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