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

                                                                      January 31, 2007
                    UNITED STATES CO URT O F APPEALS                 Elisabeth A. Shumaker
                                                                         Clerk of Court
                                 TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

       Plaintiff-Appellee,                               No. 06-2113
 v.                                          (D.C. Nos. CIV-96-0737 JP/LCS and
                                                       CR-90-285 SC)
 A LFO N SO PED RA ZA ,                                   (D .N.M .)

       Defendant-Appellant.



                                      OR DER


Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.




      This matter is before the court on Alfonso Pedraza’s latest appeal in a long

string of challenges to his 1991 conviction for conspiracy to possess with intent to

distribute cocaine. In this case, M r. Pedraza appeals the district court’s denial of

his motion to reopen a previous order denying a Fed. R. Civ. P. 60(b) motion for

relief from this Court’s order affirming the district court’s denial of M r. Pedraza’s

28 U.S.C. § 2255 petition for a w rit of habeas corpus. W e construe M r. Pedraza’s

appeal as an application for a certificate of appealability (“COA”). Because M r.

Pedraza has failed to make a substantial showing of the denial of a constitutional

right, we DEN Y a COA and DISM ISS his application.
          M r. Pedraza’s current argument had its genesis in his filing of a § 2255

habeas petition in 1996. This motion was denied by the district court and,

operating within a limited COA, we affirmed this judgment. United States v.

Pedraza, 216 F.3d 1089 (Table), 2000 W L 702372 (10th Cir. M ay 26, 2000).

Several months later, M r. Pedraza filed a motion with the district court pursuant

to Rule 60(b)(6), seeking relief from the denial of his § 2255 habeas petition. The

district court denied this motion in an October 2002 order, citing Tenth Circuit

precedent that “Rule 60(b)(6) cannot be properly used to alter the substantive

content of a judgment once it has been affirmed on appeal except in extraordinary

situations.” Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of America,

962 F.2d 1528, 1534 (10th Cir. 1992) Over a year later, in D ecember 2003, M r.

Pedraza filed in this Court a belated notice of appeal from the district court’s

denial which we construed as a request for a COA. 1 Finding that the district

court’s denial of his R ule 60(b)(6) motion violated no constitutional right, we

denied his request in a M ay 2004 order.

      In November 2005, M r. Pedraza filed yet another motion to reopen the

district court’s October 2002 order, arguing that Gonzalez v. Crosby, 545 U.S.

524 (2005) implicitly overruled the Tenth Circuit authority the district court had



      1
        In the interim, M r. Pedraza had not been idle. After the time for appeal of
the district court’s October 2002 order expired, he filed a motion to reopen the
time for appeal at the district court and, when that motion was denied, a Rule
59(e) motion for reconsideration of the denial, w hich was also denied.

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relied upon in dismissing his earlier Rule 60(b)(6) motion. The district court

construed this motion as another Rule 60(b) motion and denied it, holding that

Gonzalez was inapplicable and that Tenth Circuit precedent still prevented the

court from granting relief under Rule 60(b) from a judgment which had already

been affirmed. M r. Pedraza then filed a Rule 59(e) motion seeking alteration or

amendment of the district court’s denial, which the district court also denied. M r.

Pedraza filed notice of his appeal from this district court order in April 2006, thus

bringing the instant case before this Court.

      W e will construe M r. Pedraza’s appeal as an application for a COA. See

Spitznas v. Boone, 464 F.3d 1213, 1218 (10th Cir. 2006) (“[W ]e conclude that a

CO A is required to appeal from the denial of a true Rule 60(b) motion.”). To

obtain a COA, an applicant must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). M r. Pedraza argues that the district

court’s denial of his first Rule 60(b) motion, and this Court’s affirmance, violated

his constitutional right to due process because these decisions were based on

findings not supported by the record. 2 These claims, however, are identical to

those brought by M r. Pedraza in his original Rule 60(b) motion and for which he

sought a COA in his D ecember 2003 appeal to this Court. W e denied his COA

      2
        Specifically, M r. Pedraza argues that the district court relied on an
erroneous finding of fact that his counsel was unaware of an error in a call log
introduced as evidence at trial, and that this Court erroneously assumed that the
jury at the trial was provided with audio tapes of certain phone conversations,
rather than transcripts of those conversations.

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application at that time, noting — as had the district court — that Rule 60(b) may

not provide relief from a judgement that has been affirmed on appeal “except in

extraordinary situations.” United States v. Pedraza, No. 03-2178, slip op. at 3

(10th Cir. M ay 19, 2004) (quoting Colorado Interstate Gas Co., 962 F.2d at 1534).

Since M r. Pedraza demonstrated no “extraordinary circumstances,” we concluded

that the district court’s denial of his motion did not violate his constitutional

rights. Id.

      Subsequent to our original denial of a CO A on the Rule 60(b) motion, the

United States Supreme Court issued Gonzalez v. Crosby, which delineated the

difference between genuine Rule 60(b) motions in habeas proceedings and those

which should instead be treated as second or successive habeas petitions subject

to the stringent requirements of 28 U.S.C. § 2244. 545 U.S. 524, 125 S.Ct. 2641

(2005). M r. Pedraza reads Gonzalez for a different proposition, however, arguing

that it requires district courts, when faced with a genuine Rule 60(b) motion in a

habeas proceeding, to determine the merits of that motion without regard to

whether the challenged judgment has been affirmed on appeal. Thus, according

to M r. Pedraza, Gonzalez effectively overruled the rule from Colorado Interstate

Gas Co. which the district court and this Court relied upon to deny his post-

appeal Rule 60(b) motion.

      W e cannot, however, agree with M r. Pedraza’s reading of Gonzalez. W hile

Gonzalez sets out important rules for distinguishing between Rule 60(b) motions

                                          -4-
and second or successive habeas petitions, it provides no guidance as to how a

district court should proceed once it determines that a petitioner’s motion is, in

fact, a genuine R ule 60(b) motion, beyond simply noting that the district court

may “allow[] the motion to proceed as denominated.” 125 S.Ct. at 2648. In

interpreting Gonzalez, this Court has been slightly more specific: “If the district

court concludes that the motion is a true Rule 60(b) motion, it should rule on it as

it w ould any other Rule 60(b) motion.” Spitznas, 464 F.3d at 1217.

      W e conclude, therefore, that Gonzalez in no way affects Tenth Circuit

precedent that “Rule 60(b)(6) cannot be properly used to alter the substantive

content of a judgment once it has been affirmed on appeal except in extraordinary

situations.” Colorado Interstate Gas Co., 962 F.2d at 1534; cf. W atson v. W ard,

404 F.3d 1230, 1232 (10th Cir. 2005) (“[A] Rule 60(b) motion should not be a

substitute for an appeal . . . .”). Since M r. Pedraza’s motion sought to use Rule

60(b) in precisely this manner, without demonstrating any extraordinary

circumstances, we conclude that the district court did not violate his

constitutional rights by denying the motion. As a result, we DENY a COA and

DISM ISS his application.

                                        ENTERED FOR THE COURT



                                        David M . Ebel
                                        Circuit Judge



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