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

                               FOR THE TENTH CIRCUIT                     November 8, 2016

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                            No. 16-6253
v.                                                 (D.C. Nos. 5:16-CV-00890-R &
                                                        5:06-CR-00115-R-1)
JESUS ADOLFO TINAJERO-PORRAS,                               (W.D. Okla.)

       Defendant - Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.


       Jesus Adolfo Tinajero-Porras was convicted of charges arising from a

conspiracy to possess with intent to distribute cocaine and marijuana. After an

unsuccessful appeal, Tinajero-Porras filed a motion for relief under 28 U.S.C.

§ 2255, which the district court denied. Nearly seven years later, Tinajero-Porras

filed a “motion for relief . . . pursuant to [Fed. R. Civ. P.] 60(b).” R. Vol. 1 at 46.

The district court construed the motion as an unauthorized successive § 2255 motion

and dismissed it for lack of jurisdiction. Tinajero-Porras requests a certificate of



*
       This order is not binding precedent except under the doctrines of law of the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.
appealability (COA). For the following reasons, we deny his request and dismiss this

matter.

      Tinajero-Porras must obtain a COA before he can appeal the dismissal of an

unauthorized successive § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). The district

court disposed of Tinajero-Porras’ motion on procedural grounds, so in order to

obtain a COA Tinajero-Porras must show that jurists of reason would find it

debatable whether the district court’s procedural ruling was correct. Slack v.

McDaniel, 529 U.S. 473, 484 (2000). A court should construe a motion for relief

under Fed. R. Civ. P. 60(b) as a second or successive § 2255 motion if it seeks to add

a new claim, which includes attacking the “court’s previous resolution of a claim on

the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (emphasis omitted).

“Conversely, . . . 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.” Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006) (citations

omitted).

      Tinajero-Porras argues his motion for relief under Fed. R. Civ. P. 60(b) was a

“true” 60(b) motion. According to Tinajero-Porras, he did not seek to add a new

claim or attack the district court’s resolution of his prior § 2255 motion on the merits,

but instead asked the court to rule on a claim in his original § 2255 motion that it had

failed to address. There are two problems with this argument. First, the district court


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specifically rejected the claim Tinajero-Porras argues it missed—that his attorney

was ineffective for failing to object to statements in the presentence report—in its

September 15, 2009, order. See United States v. Tinajero-Porras, No. CR-06-115-R,

Order at 4 (W.D. Okla. Sept. 15, 2009). Second, much of Tinajero-Porras’ 60(b)

motion is devoted to rearguing the merits of his ineffective assistance claim. The

district court therefore properly construed it as an unauthorized successive § 2255

motion. Because reasonable jurists could not debate this procedural ruling, we deny

Tinajero-Porras’ request for a COA.

       We grant Tinajero-Porras’ motion to proceed on appeal without prepayment of

costs or fees. But because 28 U.S.C. § 1915(a)(1) allows us to excuse only

prepayment of fees, he remains obligated to pay all filing and docketing fees to the

clerk of the district court.


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




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