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

                             FOR THE TENTH CIRCUIT                             January 8, 2018
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-3175
                                                   (D.C. Nos. 6:17-CV-01169-JTM &
TYRONE L. ANDREWS,                                      6:07-CR-10221-JTM-2)
                                                               (D. Kan.)
      Defendant - Appellant.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.
                  _________________________________

       Tyrone L. Andrews filed a motion in the district court, purportedly under Federal

Rule of Civil Procedure 60(b). The district court construed the motion as an

unauthorized second or successive motion to vacate his sentence under 28 U.S.C. § 2255

and dismissed it for lack of jurisdiction. Proceeding pro se, Andrews seeks to appeal the

district court’s ruling. We deny a certificate of appealability (COA) and dismiss this

proceeding.

                                       Background

       In 2010, Andrews pleaded guilty to 86 counts of drug trafficking and related

offenses and was sentenced to 20 years in prison. His plea agreement included a waiver

       *
         This order is not binding precedent except under the doctrines of law of the case,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.
of his rights to appeal and to collaterally attack his conviction or sentence. Even so, he

filed a direct appeal, which was dismissed on waiver grounds. He also moved to vacate

his sentence under § 2255; however, the district court denied his motion, and this court

denied a COA when Andrews sought to appeal the district court’s ruling. See United

States v. Andrews, 471 F. App’x 824, 829 (10th Cir. 2012). This court later denied a

motion for authorization to file a second or successive § 2255 motion as well.

       Seven years after his guilty plea, Andrews filed a “motion to void the criminal

judgment” against him under Rule 60(b)(4). He challenged the district court’s

jurisdiction over him, alleging that 18 U.S.C. § 3231 (which confers original jurisdiction

on district courts) is void. In addition, he asked the district court to vacate his conviction

and sentence on the grounds that (1) he received ineffective assistance of counsel during

the plea bargaining process and at sentencing and (2) the prosecutor and judge engaged in

misconduct. Looking at the relief sought, the district court construed the Rule 60(b)

motion as a § 2255 motion and held that it was second or successive and not authorized

by this court. It then dismissed the motion for lack of jurisdiction.

                                         Discussion

       Andrews 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). This requires

“a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).

We liberally construe his pro se application for a COA, see Hall v. Scott, 292 F.3d 1264,

1266 (10th Cir. 2002), but we do not assume the role of advocate, see Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

                                              2
       Because the district court’s ruling rested on procedural grounds, not on the merits,

Andrews must show both “that jurists of reason would find it debatable whether the

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

would find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). We need only consider

the second part of this standard to conclude Andrews has not met this burden.

       Rule 60(b) cannot be used to “circumvent[] AEDPA’s requirement that a new

claim be dismissed unless it relies on either a new rule of constitutional law or newly

discovered facts.” Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). “[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) (citation omitted). By contrast, “[a] § 2255 motion is one

claiming the right to be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States, or that the court was without

jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack.” United States v. Nelson,

465 F.3d 1145, 1148 (10th Cir. 2006) (internal quotation marks omitted). Regardless of

how a movant characterizes a post-judgment motion, it is treated as a § 2255 motion if it

“asserts or reasserts a federal basis for relief” from the movant’s conviction or sentence.

In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009) (per curiam) (internal quotation

marks omitted).

                                               3
       Here, Andrews “move[d] to vacate both his conviction and sentence on the

grounds the sentence was imposed in violation of the Constitution or laws of the United

States, that the court was without jurisdiction to impose the sentence and that this was a

direct result of the denial of Sixth Amendment rights to effective assistance of counsel,

during the pre-trial plea process, and at sentencing.” R., Vol. IV at 106. Given the

substance of this request, reasonable jurists could not debate that the district court

properly construed the motion as an unauthorized successive § 2255 motion. Andrews

did not challenge a procedural ruling of the habeas court that precluded a merits review

of a habeas application, nor did he challenge a defect in the integrity of his habeas

proceeding.

                                         Conclusion

       Because reasonable jurists could not debate the correctness of the district court’s

procedural ruling, and because Andrews has not presented any argument challenging the

court’s further determination that his § 2255 motion was second or successive and

unauthorized, we deny Andrews’ application for a COA and dismiss the proceeding. We

grant Andrews’ motion to proceed on appeal without prepayment of costs or fees, but

remind him of his obligation to make partial payments until the filing fee has been paid in

full. 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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