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

                           FOR THE TENTH CIRCUIT                       February 2, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
WALTER PAYTON,

             Petitioner - Appellant,

v.                                                         No. 14-3209
                                                  (D.C. No. 5:14-CV-03059-SAC)
STATE OF KANSAS,                                             (D. Kan.)

             Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, LUCERO and BACHARACH, Circuit Judges.


      Walter Payton, proceeding pro se, seeks a certificate of appealability (COA) to

appeal from the district court’s dismissal of his federal habeas application. We deny

a COA and dismiss this matter.

      Mr. Payton was convicted of Kansas rape charges. The district court

dismissed his first 28 U.S.C. § 2254 habeas application as time-barred and his second

and third § 2254 applications as successive. In April 2014, Mr. Payton filed a

“Motion to Proceed Pursuit [sic] 28 U.S.C. 2241,” R. at 3, asserting that the

untimeliness of his first § 2254 application was due to his retained counsel’s failure

*
       This order is not binding precedent except under the doctrines of law of the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.
to file it as promised. Citing Fed. R. Civ. P. 59(e), he also requested the district court

to amend the judgment. The district court held that Mr. Payton could not proceed

under § 2241, and that to the extent he sought relief under Rule 59(e), the motion was

untimely. Further, the court held, “to the extent that this matter may be construed as

a successive petition for habeas corpus,” Mr. Payton was required to obtain this

court’s authorization before the case could proceed. R. at 7-8.

       To appeal, Mr. Payton must obtain a COA. See 28 U.S.C. § 2253(c). To do

that, he must show “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).

       Mr. Payton’s motion is directed not toward the execution of his sentence, but

toward his earlier § 2254 proceedings. Accordingly, the district court correctly held

that he could not proceed under § 2241. See McIntosh v. U.S. Parole Comm’n,

115 F.3d 809, 811 (10th Cir. 1997) (“Petitions under § 2241 are used to attack the

execution of a sentence, in contrast to § 2254 habeas and [28 U.S.C.] § 2255

proceedings, which are used to collaterally attack the validity of a conviction and

sentence.”). The district court also correctly held that the motion was untimely under

Fed. R. Civ. P. 59(e).

       But liberally construed, the filing could be considered as equivalent to a

Fed. R. Civ. P. 60(b) motion attacking the district court’s decision that the first


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§ 2254 application was time-barred. A Rule 60(b) motion challenging the integrity

of earlier federal habeas proceedings is not required to be treated as a successive

§ 2254 application, so it need not be authorized by this court before proceeding in the

district court. See Gonzalez v. Crosby, 545 U.S. 524, 532-33 (2005) (stating that a

motion alleging misapplication of statute of limitations in the earlier habeas case

alleged a deficiency in the federal habeas proceedings that did not require

authorization as a second or successive § 2254 application). Accordingly, reasonable

jurists could debate whether the district court lacked jurisdiction to consider this

filing.

          Even assuming, however, that the district court may have erred in its

procedural determination, reasonable jurists could not debate whether the filing states

a valid claim of the denial of a constitutional right. Mr. Payton claims that the

untimeliness of his first § 2254 application was due to his counsel’s inaction. But

there is no constitutional right to counsel in a post-conviction proceeding. See

Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012); Coleman v. Thompson, 501 U.S.

722, 752 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Therefore, even

if counsel performed inadequately by failing to timely file the first § 2254

application, no reasonable jurist could conclude that Mr. Payton was deprived of a

constitutional right. See Coleman, 501 U.S. at 752 (where there is no constitutional

right to counsel, a petitioner cannot claim constitutionally ineffective assistance of

counsel); Smallwood v. Gibson, 191 F.3d 1257, 1266 n.4 (10th Cir. 1999) (same).


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      Mr. Payton’s motion to proceed in forma pauperis is granted. The request for

a COA is denied and this matter is dismissed.

                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




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