                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     October 23, 2006
                   UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 EUG ENE T. FOUST,

       Plaintiff - Appellant,
 v.                                                     No. 06-5059
                                                 (D.C. No. 89-CV-611-TCK)
 R ON A LD J. C HA M PIO N ;                            (N.D. Okla.)
 STA TE OF O K LA H O MA ,

       Defendants - Appellees.



                     OR DER DENYING A CERTIFICATE
                           OF APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Eugene Foust, a state prisoner proceeding pro se, appeals the district

court’s denial of his motion for relief from judgment pursuant to Fed. R. Civ. P.

60(b)(4). For substantially the same reasons set forth by the district court we

D EN Y a certificate of appealability (COA), DENY the implied application to file

a successive habeas petition, and DISM ISS.

      In his Rule 60(b)(4) motion, Foust sought relief from the district court’s

Order of M arch 26, 1993, dismissing his habeas petition due to his failure to

exhaust claims in the Oklahoma state courts. Foust asserts that the district court’s

failure to address his ineffective assistance of counsel claim was a “plain
usurpation of judicial authority” and “null and void in toto ab initio,” thus

warranting relief under Rule 60(b)(4).

      In Spitznas v. Boone, No. 05-6236, 2006 W L 2789868 (10th Cir. Sept. 29,

2006), we clarified this court’s treatment of Rule 60(b) motions in the habeas

context pursuant to the Supreme Court’s decision in Gonzalez v. Crosby, 545 U.S.

524 (2005). W e held that a “true” 60(b) motion either “(1) challenges only a

procedural ruling of the habeas court which precluded a merits determination of

the habeas application . . . or (2) challenges a defect in the integrity of the federal

habeas proceeding, provided that such a challenge does not itself lead inextricably

to a merits-based attack on the disposition of a prior habeas petition.” Spitznas,

2006 W L 2789868, at *1. If the district court correctly treats a petitioner’s

motion as a Rule 60(b) motion and denies it, we then require the petitioner to

obtain a COA before proceeding with her appeal. Id. at *3. In cases of “mixed”

60(b) motions containing both true Rule 60(b) allegations and second or

successive habeas claims, the district court “should (1) address the merits of the

true Rule 60(b) allegations as it would the allegations in any other Rule 60(b)

motion, and (2) forward the second or successive claims to this court for

authorization.” Id. at *2.

      In this case, Foust asserts a number of grounds for relief. His first – that

the district court “committed a ‘plain usurpation of judicial authority’ when it

issued its Order of M arch [26, 1993] dismissing the petition[] for writ of habeas

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corpus w ithout giving the petitioner a ‘full and fair opportunity’ to present his

claims” – falls under the first category of true Rule 60(b) motions because it

challenges only a procedural ruling of the district court that precluded a merits

determination. The district court properly permitted this portion of the

Petitioner’s motion to proceed under Rule 60(b)(4), and then denied the motion.

Following the procedures set forth in Spitznas, we now determine whether to

issue Foust a COA to proceed with his appeal of this denial. Spitznas, 2006 W L

2789868, at *3.

      A COA may issue “only if the applicant has made a substantial showing of

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

from a procedural ruling of the district court, a COA may issue only if “the

prisoner shows, at least, that jurists of reason would find it debatable whether the

petitioner states a valid claim of the denial of a constitutional right and that jurists

of reason would find it debatable w hether the district court was correct in its

procedural ruling.” Slack v. M cD aniel, 529 U.S. 473, 484 (2000).

      Here, the district court properly denied the Rule 60(b)(4) motion seeking

relief from the M arch 26, 1993 order. Rule 60(b)(4) provides relief from a

judgment on the ground that “the judgment is void.” Fed. R. Civ. P. 60(b)(4). A

judgment is void “only if the court which rendered it lacked jurisdiction of the

subject matter, or of the parties, or acted in a manner inconsistent with due




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process of law,” and not merely because it is erroneous. In re Four Seasons Sec.

Laws Litig., 502 F.2d 834, 842 (10th Cir. 1974).

      The district court’s Order of M arch 26, 1993 is neither void nor erroneous.

Because the petitioner had not previously presented his claims to the Oklahoma

Court of Criminal Appeals, the district court was required to dismiss the petition

for failure to exhaust state remedies. Accordingly, jurists of reason would not

debate the correctness of the district court’s denial of the petitioner’s Rule

60(b)(4) motion, and we thus decline to issue a COA for this claim.

      The remainder of Foust’s motion challenges the state courts’ jurisdiction,

argues ineffective assistance of counsel during direct appeal, and asserts actual

innocence of crimes for which he was convicted. Because these grounds attack

the underlying state conviction and not a procedural ruling or defect of the district

court, they constitute successive habeas claims and cannot proceed under Rule

60(b). W e instead construe this portion of Foust’s appeal as an application to file

a successive habeas application under 28 U.S.C. § 2254 as to these claims. See

Spitznas, 2006 W L 2789868, at *4.

      In order to receive authorization to file a successive habeas petition, an

applicant must make a prima facie showing that he satisfies the criteria in §

2244(b)(2). W hen the applicant does not rely on a new rule of constitutional law

made retroactive to cases on collateral review by the Supreme Court, he must

show that:


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      (i) the factual predicate for the claim could not have been discovered
      previously through the exercise of due diligence; and
      (ii) the facts underlying the claim, if proven and viewed in light of
      the evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that, but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying
      offense.

28 U.S.C. § 2244(b)(2)(B).

      A one-year period of limitation applies to successive habeas applications,

running from the date on which the factual predicate of the claims could have

been discovered through the exercise of due diligence. 28 U.S.C. §

2244(d)(1)(D). Foust presents no factual predicate discovered within one year of

his filing for any of his remaining claims. Therefore, the implied application to

file a successive § 2254 habeas application is DENIED, the request for a COA to

appeal the denial of the 60(b) motion is DENIED, and the appeal is

DISM ISSED.




                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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