                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 6, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 RANDALL D. SPEER,

                 Petitioner–Appellant,                   No. 11-6067
          v.                                     (D.C. No. 5:05-CV-00691-R)
 MARTY SIRMONS, Warden,                                  (W.D.Okla.)

                 Respondent–Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.



      Petitioner, a state prisoner proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his “Motion to Reopen

Original Habeas Petition for the Non-Adjudicated Constitutional Claims.”

Petitioner’s original § 2254 habeas petition was denied by the district court in

2005, and we denied a certificate of appealability as to that denial in 2006. See

Speer v. Sirmons, No. 05-6272 (10th Cir. Feb. 16, 2006). In his motion to reopen,

Petitioner argued there were numerous constitutional violations in his trial and



      *
        This order is not binding precedent except under the doctrines of law of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.
the federal courts had erroneously failed to consider his habeas claims on the

merits based on incorrect procedural rulings. The district court concluded, to the

extent it had authority to treat Petitioner’s motion to reopen as a Rule 60(b)

motion for relief from the judgment, that the motion should be denied as untimely

and without merit.

      After thoroughly reviewing the record and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate whether Petitioner’s claims

stated a valid basis for Rule 60(b) relief. See Spitznas v. Boone, 464 F.3d 1213,

1216 (10th Cir. 2006). For substantially the same reasons given by the district

court, we DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal. We GRANT Petitioner’s motion for leave to proceed in

forma pauperis.



                                               ENTERED FOR THE COURT


                                               Monroe G. McKay
                                               Circuit Judge




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