                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                      UNITED STATES COURT OF APPEALS                  July 17, 2008

                                  TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                      Clerk of Court


 CARL WILLIAM PURSLEY, JR.,

                 Petitioner-Appellant,                  No. 07-1529
          v.                                         District of Colorado
 AL ESTEP, Warden, L.C.F;                  (D.C. No. 1:05-CV-01767-PSF-MEH)
 ATTORNEY GENERAL, State of
 Colorado,

                 Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Carl William Pursley, a state prisoner proceeding pro se, seeks a certificate

of appealability (“COA”) to permit him to appeal from the district court’s order

denying his Rule 60(b) motion, which the court construed as a successive petition

for a writ of habeas corpus under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Pursley has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                   Background

      Mr. Pursley was convicted by a Colorado jury of one count of second

degree murder, one count of attempted first degree murder, and two habitual

criminal counts. He is serving a sentence of ninety years’ imprisonment.

      On September 13, 2005, Mr. Pursley filed an application for a writ of

habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the

District of Colorado. The court dismissed the case because the application was

untimely. 28 U.S.C. § 2244(d) (“A 1-year period of limitation shall apply to an

application for a writ of habeas corpus.”). He then submitted a Prisoner’s Motion

and Affidavit for Leave to Proceed on Appeal pursuant to 28 U.S.C. § 1915. The

district court denied this motion on November 20, 2006, because Mr. Pursley had

not shown the existence of a reasoned, nonfrivolous argument in support of the

issues raised on appeal. This Court affirmed the district court’s ruling, agreeing

that the application was time barred and that Mr. Pursley had failed to present any

new evidence under Schlup v. Delo, 513 U.S. 298, 327 (1995), that made it “more

likely than not that no reasonable juror” would have convicted him. Pursley v.

Estep, 216 F. App’x 733, 735 (10th Cir. Feb. 8, 2007).

      Mr. Pursley then filed a Rule 60(b) motion with the district court, arguing

that he did not have a fair opportunity to present evidence of his actual innocence.

The court determined that the motion was “no more than a successive habeas

petition addressing a merits determination . . . which in these circumstances must

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be dismissed as untimely under AEDPA.” Pursley v. Estep, No. 05-01767, 2007

WL 4322330, *2 (D. Colo. Dec. 7, 2007). Mr. Pursley seeks to appeal. Because

he has failed to make “a substantial showing of the denial of a constitutional

right,” we deny his request for a COA. 28 U.S.C. § 2253(c)(2).

                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 or Rule 60(b), if

made in a habeas proceeding, may be appealed only if the district court or this

Court first issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA will issue “only if

the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). In order to make such a showing, a petitioner

must demonstrate that “reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (internal quotation marks omitted).

       Although the district court found that Mr. Pursley’s Rule 60(b) motion was

a successive habeas petition, it did not transfer the case to the court of appeals for

authorization to consider the application pursuant to 28 U.S.C. § 2244(b)(3)(A).

See Spitznas v. Boone, 464 F.3d 1213, 1217 (10th Cir. 2006). Rather, the court

dismissed the motion as a successive habeas petition barred by § 2244(b).

Therefore, this case is presented to us not as a request for authorization for the

district court to consider a successive habeas petition, but as an appeal of a

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successive motion for habeas relief already considered and dismissed by the

district court.

       When faced with a Rule 60(b) motion filed in response to the denial of a

petition for habeas relief, the court must first determine whether the motion

“should be treated as a second or successive habeas petition [or whether] it should

be treated as a ‘true’ 60(b) motion.” Spitznas, 464 F.3d at 1215. Under Gonzales

v. Crosby, 545 U.S. 524 (2005), a 60(b) motion is a second or successive petition

if it “in substance or effect asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction.” Spitznas, 464 F.3d at 1215.

       In his Rule 60(b) motion, Mr. Pursley contends that during his initial

habeas proceedings, the district court did not properly address his request to

develop a factual record. To the extent that Mr. Pursley is claiming a procedural

error by the district court, this claim is a “true” Rule 60(b) issue, and should be

brought as such. Gonzales, 545 U.S. at 532. His argument lacks merit, however.

The evidence that Mr. Pursley sought to introduce through expansion of the

record was relevant only to state post-conviction claims that the district court was

barred from reviewing. Pursley v. Estep, No. 05-01767, 2006 WL 3097190 (D.

Colo. Oct. 31, 2006). As to Mr. Pursley’s request for an evidentiary hearing, the

district court is limited by AEDPA in its ability to grant such hearings. The

petitioner must show that “[the] factual predicate . . . could not have been

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

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2254(e)(2)(A). The evidence that Mr. Pursley sought to present had previously

been available to him and he had in fact presented it to the state court during

post-conviction proceedings.

      To the extent that Mr. Pursley seeks through this motion to present new

evidence relevant to the merits of his claim for relief under Schlup or makes other

arguments relevant to the merits of his habeas petition, his 60(b) motion must be

construed as a successive habeas petition and is time barred.

                                    Conclusion

      Accordingly, we DENY Mr. Pursley’s request for a COA and DISMISS

this appeal. His motion to proceed in forma pauperis is also DENIED. All other

motions are DENIED as moot.

                                                     Entered for the Court,

                                                     Michael W. McConnell
                                                     Circuit Judge




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