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

                                   TENTH CIRCUIT                          September 22, 2010

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,
                                                              No. 10-3124
 v.                                               (D.C. No. 6:08-CV-01057-MLB and
                                                        6:04-CR-10174-MLB-1)
 BRUCE SEARS,                                                  (D. Kan.)

           Defendant–Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and LUCERO, Circuit Judges.



       Bruce Sears, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to appeal the district court’s denial of his Fed. R. Civ. P. 60(b)(4)

motion. We deny a COA and dismiss the appeal.

                                             I

       In 2004, Sears was convicted on four counts relating to the armed robbery of a

Red Lobster restaurant in Wichita, Kansas. He was sentenced to life in prison. We

affirmed his conviction in United States v. Sears, 191 Fed. App’x 800 (10th Cir. 2006)


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
(unpublished). Sears later filed a 28 U.S.C. § 2255 petition advancing numerous claims.

After reviewing certain discovery materials in camera, the district court denied relief and

declined to grant a COA. This court also rejected Sears’ request for a COA. United

States v. Sears, 294 Fed. App’x 383 (10th Cir. 2008) (unpublished).

       Sears then returned to the district court, alleging in a Fed. R. Civ. P. 60(b)(4)

motion that the court’s order denying habeas relief is void because it was entered without

due process. He argued the district court failed to address each of his claims and

improperly denied an evidentiary hearing. The motion also discussed a litany of alleged

constitutional violations during his trial. The district court denied Sears’ motion and

refused him a COA. Sears now seeks a COA from this court.

                                              II

       At the outset, we must determine whether Sears’ Rule 60(b)(4) motion is actually

a “second or successive” habeas petition over which the district court would lack

jurisdiction absent prior certification from this court. See 28 U.S.C. § 2255(h).

Distinguishing between a true Rule 60(b) motion and a second or successive habeas

petition turns on the “relief sought, not [the] pleading’s title.” United States v. Nelson,

465 F.3d 1145, 1149 (10th Cir. 2006). If a petitioner seeks “relief from the conviction or

sentence,” his claim is a successive habeas petition. Id. at 1147. But if a pleading attacks

“some defect in the integrity of the federal habeas proceedings,” it “should not be

characterized as a successive petition.” Id. (quotation omitted).

       The district court liberally construed Sears’ motion as challenging procedural

aspects of his original habeas case. Cf. Haines v. Kerner, 404 U.S. 519, 520-21 (1972)

                                             -2-
(pro se filings should be construed liberally). We agree with this characterization.

Despite Sears’ superfluous discussion of his substantive habeas claims, we will address

the two claims that can be read as procedural objections to his initial § 2255 proceeding.

       A litigant must obtain a COA to appeal the denial of a Rule 60(b) motion seeking

to reopen a § 2255 proceeding. See Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th

Cir. 2006). Sears may not obtain a COA unless he demonstrates “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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation omitted). Sears has failed to make such a showing.

       Under Fed. R. Civ. P. 60(b)(4), a litigant may obtain relief from a final judgment if

“the judgment is void.” A judgment may be void “if entered in a manner inconsistent

with due process.” Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994). Sears

advances two due process arguments. First, he alleges that the district court did not rule

on all of his claims. Our review of Sears’ petition and the district court’s orders belie this

contention. Sears’ ineffective assistance claim contained several constitutional

arguments. The district court held that many of these sub-issues were barred as

independent claims because they were not raised on direct appeal, and concluded that

each of Sears’ attorneys was effective.

       Second, Sears complains that the district court did not grant an evidentiary

hearing. If a claim is “resolvable solely on the basis of the existing record,” a district

court may deny an evidentiary hearing in its discretion. Hooks v. Workman, 606 F.3d

                                             -3-
715, 731 (10th Cir. 2010). The district court conducted an in camera review of evidence

sought by Sears rather than allowing the far-reaching discovery he requested. Such a

procedure is entirely permissible.

                                           III

       For the forgoing reasons, we DENY a COA and DISMISS the appeal. Because

Sears has failed to advance “a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991), we DENY his motion to proceed in forma pauperis.

                                         Entered for the Court



                                         Carlos F. Lucero
                                         Circuit Judge




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