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

                            FOR THE TENTH CIRCUIT                        April 17, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
IRA TUCKER,

             Petitioner-Appellant,

v.                                                         No. 12-8073
                                                  (D.C. No. 2:10-CV-00206-ABJ)
MICHAEL MURPHY, Warden,                                     (D. Wyo.)
Wyoming Medium Correctional
Institution; ATTORNEY GENERAL OF
THE STATE OF WYOMING,

             Respondents-Appellees.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HOLLOWAY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


      Petitioner Ira Tucker, a Wyoming state prisoner appearing pro se, seeks a

certificate of appealability (COA) to appeal the district court’s order dismissing his

post-judgment motion for relief pursuant to Fed. R. Civ. P 60(b). We deny a COA

and dismiss the appeal.

*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Tucker pleaded guilty in Wyoming state court to two counts of possession of

controlled substances with intent to deliver, reserving the right to appeal the denial of

his suppression motion. His convictions were affirmed on direct appeal, Tucker v.

State, 214 P.3d 236, 246 (Wyo. 2009) and his petition for post-conviction relief was

denied. In 2010, he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254,

raising twelve issues, including, as relevant here, a claim that he did not receive an

initial appearance within seventy-two hours of his arrest, as required by a Wyoming

rule of criminal procedure. “In a 32-page carefully and thoroughly reasoned opinion,

the district court explained why each issue was either procedurally defaulted or

meritless.” Tucker v. Murphy, 456 F. App’x 756, 760 (10th Cir.), cert. denied,

132 S. Ct. 2111 (2012). As to Tucker’s initial-appearance claim, the district court

ruled that the state court had correctly held that Tucker waived this challenge when

he pleaded guilty and, moreover, a violation of state criminal procedure is not a

cognizable federal claim under § 2254. It granted respondent’s partial motion to

dismiss and for summary judgment, and this court denied Tucker a COA, id. at 762.

      Tucker then filed a “Motion for Relief from Void Judgment Pursuant to

Federal Rules of Civil Procedure, Rule 60(b)(4) and (6).” R., Vol. I at 816. In it, he

argued the district court’s ruling that he waived his initial-appearance claim deprived

him of his due process rights and rendered the district court’s § 2254 judgment void.




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Id. at 819-20. The district court dismissed 1 the Rule 60(b) motion, ruling that Tucker

was reasserting the same claim of error regarding the state court’s proceeding that he

had raised in his § 2254 petition. Thus, it ruled Mr. Tucker’s motion constituted a

second or successive § 2254 claim that must be dismissed under 28 U.S.C.

§ 2244(b)(1).

       Tucker must obtain a COA to pursue an appeal. See United States v. Harper,

545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling rests on

procedural grounds, he 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).

       A prisoner may not file a second or successive § 2254 application unless he

first obtains an order from the circuit court authorizing the district court to consider

it. 28 U.S.C. § 2244(b)(3)(A). A Rule 60(b) motion filed after a § 2254 petition has

been denied is properly characterized as a second or successive habeas 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). Tucker’s Rule 60(b) claim is clearly a successive § 2254 claim


1
      Although the district court’s concluding sentence “denied” Tucker’s
Rule 60(b) motion, it clearly ruled the claim was successive and must be dismissed
under 28 U.S.C. § 2244(b)(1). Thus, we construe its order as dismissing, rather than
denying, the motion.


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because it asserts a basis for relief from his underlying conviction. Because it is the

same claim Tucker raised in his § 2254 petition, authorization is not permitted and it

must be dismissed. See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or

successive habeas corpus application under section 2254 that was presented in a prior

application shall be dismissed.”).

      No jurist of reason could reasonably debate the correctness of the district

court’s determination that his Rule 60(b) constituted an unauthorized second or

successive § 2254 claim that must be dismissed. We deny a COA and dismiss this

appeal.

                                                Entered for the Court


                                                William J. Holloway, Jr.
                                                Senior Circuit Judge




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