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

                                 FOR THE TENTH CIRCUIT                          August 3, 2017
                             _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
JASON BROOKS,

      Petitioner - Appellant,

v.                                                           No. 17-1171
                                                    (D.C. No. 1:14-CV-02276-CBS)
LOU ARCHULETA, Warden; CYNTHIA                                 (D. Colo.)
COFFMAN, The Attorney General of the
State of Colorado,

      Respondents - Appellees.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY*
                    _________________________________

Before TYMKOVICH, Chief Judge, O’BRIEN and BACHARACH, Circuit Judges.
                 _________________________________

       Jason Brooks, a Colorado state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s decision construing his Fed. R. Civ. P.

60(b) motion as an unauthorized second or successive 28 U.S.C. § 2254 petition and

dismissing it for lack of jurisdiction. We deny a COA and dismiss this matter.

       In 2010, Brooks pled guilty to four counts of securities fraud and was sentenced to

32 years’ imprisonment. As part of his plea, he also agreed to pay approximately

$5 million in restitution.



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       In 2014, Brooks filed his first § 2254 petition, Brooks v. Archuleta,

No. 14-CV-2276 (D. Colo. filed Aug. 15, 2014) (Brooks I), which the district court

dismissed in part and denied in part. In July 2015, we denied Brooks’s application for a

COA and dismissed the matter. See Brooks v. Archuleta, 621 F. App’x 921, 922, 928

(10th Cir. 2015).

       In July 2015, at or about the time we denied his application for a COA in his first

habeas proceeding, Brooks learned from a state court clerk that his unpaid restitution was

subject to a monthly 1% interest charge under a Colorado statute. The following month,

August 2015, Brooks filed his fourth motion for post-conviction relief in the trial court in

which he presented the claim concerning the interest charge as a question of federal

constitutional law. In particular, he argued that the breach of the plea agreement violated

the due process clause of the Fourteenth Amendment. In January 2016, the court denied

the motion.

       Brooks, however, did not appeal the trial court’s adverse ruling on his breach

claim. Instead, he sought authorization from this court to file a second or successive

habeas petition to press his claim that the plea agreement had been breached. We denied

authorization because the claim had nothing to do with whether Brooks was innocent,

which is required before a second or successive claim, not involving a new rule of

constitutional law, can proceed. See In re Brooks, No. 16-1052, Order at 2 (10th Cir.

Mar. 23, 2016), citing 28 U.S.C. § 2244(b)(2)(B) (a second or successive claim can

proceed only where “the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence” and “the facts underlying the claim, if

                                             2
proven and viewed in light of the evidence as a whole, would be sufficient to establish by

clear and convincing evidence that, but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying offense”).

       Nonetheless, we noted that Brooks would not need authorization to proceed with

his habeas claim if it were construed as a newly-arising objection to the state’s alleged

breach because a habeas petition asserting a newly accrued claim on events occurring

after a prior petition is not second or successive. See id. at 3. Because the claim was

susceptible to such construction, we considered whether the interests of justice favored a

transfer of the matter to the district court. We concluded that transfer was unwarranted

because Brooks’s failure to exhaust the claim by timely appealing the trial court’s order

raised an anticipatory procedural bar. See id., citing Frost v. Pryor, 749 F.3d 1212, 1231

(10th Cir. 2014) (“Anticipatory procedural bar occurs when the federal courts apply

procedural bar to an unexhausted claim that would be procedurally barred under state law

if the petitioner returned to state court to exhaust it.” (internal quotation marks omitted)).

       Brooks returned to district court where he filed a second habeas action in which he

raised his due process breach of plea bargain claim. Brooks v. Archuleta, No. 16-CV-895

(D. Colo. filed Apr. 20, 2016) (Brooks II). In a July 2016 order, the court held that

Brooks’s claim was not second or successive because it arose after the prior habeas action

had concluded. Nonetheless, it dismissed the petition based on anticipatory procedural

bar. We denied Brooks’s request for a COA. Brooks v. Archuleta, No. 16-1344,

2017 WL 957182 (10th Cir. Mar. 13, 2017), petition for cert. filed (U.S. May 25, 2017)

(No. 16-9434).

                                              3
       Brooks next filed in Brooks II a motion for relief from judgment under

Fed. R. Civ. P. 60(b)(6). The district court determined that the motion was a true

Rule 60(b)—not a second or successive application—because it challenged the court’s

procedural ruling of anticipatory bar, which in turn precluded a merits determination of

the habeas application. See Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (2005) (holding

where a movant “merely asserts that a previous ruling which precluded a merits

determination was in error—for example, a denial for such reasons as failure to exhaust,

procedural default, or statute-of-limitations bar” he is not stating or restating a habeas

claim). The court found, however, that Brooks failed to establish the extraordinary

circumstances to justify relief under Rule 60(b), and denied the motion. See id. at 535

(the “extraordinary circumstances justifying the reopening of a final judgment. . . . will

rarely occur in the habeas context” (internal quotation marks omitted)). Brooks did not

appeal.

       Instead, he filed a Rule 60(b)(6) motion in his first habeas case, Brooks I, raising

claims in connection with the interest charge that were or could have been raised in

Brooks II. The court concluded that the Rule 60(b) motion constituted an attempt to file a

second or successive § 2254 petition without prior authorization and dismissed the

motion for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008)

(per curiam) (“A district court does not have jurisdiction to address the merits of a second

or successive . . . § 2254 claim until this court has granted the required authorization.”);

see also 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive [§ 2254]

application . . . is filed in the district court, the applicant shall move in the appropriate

                                                4
court of appeals for an order authorizing the district court to consider the application.”).

Brooks now seeks a COA to appeal from the court’s order in Brooks I.

       To appeal, Brooks must obtain a COA. See 28 U.S.C. § 2253(c)(1)(A). Where, as

here, a district court has dismissed a filing on procedural grounds, for a COA the movant

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). We bypass the constitutional question because we

can easily dispose of this matter based on the procedural one. See id. at 485.

       A prisoner’s post-conviction filing, regardless of its title, should be treated as a

second or successive § 2254 petition if it seeks to present new claims for relief from a

state court’s judgment of conviction, Gonzalez, 545 U.S. at 531, and does not “seek[] to

correct an error in the previously conducted habeas proceeding itself,” United States v.

Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). A Rule 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 v. Boone, 464 F.3d 1213, 1215

(10th Cir. 2006). Brooks clearly seeks to assert or reassert claims for relief from his state

court judgment of conviction that were previously available (i.e. when he filed the habeas

petition in Brooks II). As such, reasonable jurists could not debate that the district court

was correct in its procedural determination that Brooks’s Rule 60(b) motion was an

unauthorized second or successive § 2254 petition.



                                                5
      Brooks’s motion for leave to proceed on appeal without prepayment of costs or

fees is granted. But only prepayment of fees is waived, not the fees themselves.

See 28 U.S.C. § 1915(a)(1), (b). A COA is denied and this matter is dismissed.


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




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