                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALSNovember 3, 2011
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 ANDREW JOHN YELLOWBEAR, JR.,

              Petitioner - Appellant,                     No. 11-8035
 v.                                             (D.C. No. 2:06-CV-00082-ABJ)
 ATTORNEY GENERAL OF THE                                  D. Wyoming
 STATE OF WYOMING; SKIP
 HORNECKER, in his official capacity
 as Supervisor, Fremont County
 Detention Center,

              Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


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



      Andrew John Yellowbear, Jr., an Oklahoma state prisoner, was convicted of

first degree murder and sentenced to life imprisonment. Yellowbear v. Att’y Gen.

of Wyo., 380 F. App’x 740, 740 (10th Cir. 2010). Yellowbear’s challenge to the

jurisdiction of the state court was rejected by the Wyoming Supreme Court on

direct appeal and by the federal courts, including this court, in Yellowbear’s

subsequent 28 U.S.C. § 2254 habeas proceeding. Id. at 740-41.

      Ten months after this court affirmed the district court’s denial of habeas

relief on Yellowbear’s jurisdictional claim, he filed a Fed. R. Civ. P. 60(b)
motion with the United States District Court for the District of Wyoming, arguing

he was entitled to relief from the judgment because the district judge fell asleep

during the hearing on his § 2254 petition. In a comprehensive order, the district

court denied Yellowbear’s 60(b) motion. The court concluded Yellowbear failed

to show extraordinary circumstances justifying relief because he failed to

establish that an erroneous legal judgment would be left uncorrected if his motion

was not granted. Specifically, the court noted that Yellowbear’s jurisdictional

claim had been fully considered and rejected on the merits by the Wyoming

Supreme Court. After Yellowbear was granted a certificate of appealability, this

court also considered the claim on the merits, concluding the state court’s

adjudication was neither “an objectively unreasonable application of Supreme

Court precedent” nor “incorrect.” Id. at 743.

      Yellowbear now seeks a certificate of appealability (“COA”) to challenge

the district court’s denial of his Rule 60(b) motion. See Spitznas v. Boone, 464

F.3d 1213, 1217-18 (10th Cir. 2006) (holding a COA is required to appeal the

denial of Rule 60(b) relief from a habeas judgment). To be entitled to a COA,

Yellowbear must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must

demonstrate “that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

                                         -2-
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In

evaluating whether Yellowbear has satisfied his burden, this court undertakes “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Id. at 338; see also LaFleur v. Teen Help, 342

F.3d 1145, 1153 (10th Cir. 2003) (reviewing the denial of a Rule 60(b)(6) motion

for abuse of discretion). Although Yellowbear need not demonstrate his appeal

will succeed to be entitled to a COA, he must “prove something more than the

absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at

336 (quotations omitted).

      This court has reviewed Yellowbear’s appellate brief and application for

COA, the district court’s well-reasoned order, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El and

concludes Yellowbear is not entitled to a COA. Accordingly, we deny his request

for a COA and dismiss this appeal. Because Yellowbear’s motion to proceed in

forma pauperis indicates he is able to pay the costs associated with pursuing this

appeal, his request to proceed in forma pauperis is denied and he is ordered to

pay any remaining balance of the appellate filing fee. All additional outstanding

motions are denied.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge

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