                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         May 23, 2007
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court


 RO DNEY JARO M E BRO ADES,

               Petitioner-A ppellant,                      No. 06-7120
          v.                                       Eastern District of Oklahoma
 GARY GIBSO N, W arden,                            (D.C. No. 99-CV-302-RAW )

               Respondent-Appellee.



                                        OR DER *


Before BR ISC OE, M cCO NNELL, and M cKAY, Circuit Judges.


      Rodney Jarome Broades, a state prisoner proceeding pro se, requests a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his Rule 60(b) motion for relief from a previous judgment.

Fed. R. Civ. P. 60(b). W ith his motion, M r. Broades seeks to overturn the district

court’s M ay 4, 2000 denial of his petition for a writ of habeas corpus. Because

we conclude that M r. Broades has failed to make “a substantial showing of the

denial of a constitutional right,” we DENY his request for a COA, and dismiss the

appeal. 28 U.S.C. § 2253(c)(2).



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      In 1995, an Oklahoma state court convicted M r. Broades of robbery with a

firearm. Thanks partly to his two prior felony convictions, M r. Broades was

sentenced to fifty years imprisonment. Oklahoma state courts rejected his

challenges to the sentence and conviction on direct appeal. M r. Broades’s

collateral attacks in state court also failed. Thereafter, M r. Broades filed a

motion for a nunc pro tunc order and a petition for a writ of habeas corpus. The

state district court denied the habeas petition and the O klahoma appellate court

affirmed, finding M r. Broades’s claims barred under the doctrine of res judicata.

      At the conclusion of these state actions, M r. Broades filed a petition for

habeas corpus in federal court in w hich he challenged the O klahoma court’s

sentencing calculation of his prior convictions and claimed that a conflict of

interest led to ineffective assistance of counsel. The district court dismissed M r.

Broades’s 28 U.S.C. § 2244(d) petition as time-barred, on the ground that it

contained claims that w ere procedurally defaulted under Oklahoma state law. O n

November 3, 2000, this Court denied M r. Broades’s petition for COA.

      Four days later, however, the U.S. Supreme Court held the requirement in §

2244(d) that habeas claims be “properly filed” refers to delivery of the necessary

documents to an appropriate officer and does not pertain to whether an individual

claim was procedurally barred. Artuz v. Bennett, 531 U.S. 4, 8 (2000). M r.

Broades petitioned this Court for a rehearing based on Artuz, which we granted.

W e issued a revised order and judgment on December 4, 2000. In this revised

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order, we declined to rely on § 2244(d); instead, we looked to the district court’s

finding that independent and adequate state law grounds barred federal

consideration of M r. Broades’s claims. Noting that when a state prisoner “has

defaulted his federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review . . . is barred,” Coleman v.

Thom pson, 501 U.S. 722, 750 (1991), we denied M r. Broades’s application for

COA.

       At the conclusion of this first habeas petition, M r. Broades applied for

leave to file a successive petition for habeas relief. W e refused permission. In

2002, he filed a Rule 60(b) motion in federal district court seeking relief from the

denial of his original habeas petition. The district court dismissed the motion.

On appeal, we treated the motion as an unauthorized successive § 2254 petition

over which the district court had no jurisdiction. W e accordingly vacated the

judgment and dismissed.

       In 2006, claiming the benefit of the Supreme Court’s recent ruling in

Gonzales v. Crosby, 545 U.S. 524 (2005), M r. Broades filed a second 60(b)

motion. In it, M r. Broades pointed out that, according to Crosby, not all 60(b)

motions may be construed as applications for a second or successive habeas

petition. Id. at 538. Broades argued this Court erred in construing his first 60(b)

motion as an application for a successive habeas petition. He also contended his

original habeas petition was not time-barred under Artuz, that this Court

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mistakenly refused to consider the merits of his constitutional claims on our

review of his original petition, and that under Crosby, these errors constitute valid

grounds for Rule 60(b) relief. The district court denied his motion, prompting

this petition for COA.

      Before addressing the merits of M r. Broades’s petition, we must determine

whether it counts as a “true” 60(b) motion or should instead be characterized as

an application to file a successive habeas petition. Following the Supreme

Court’s decision in Crosby, we held that a “60(b) motion that challenges only the

federal habeas court’s ruling on procedural issues should be treated as a true

60(b) motion rather than a successive petition.” Spitznas v. Boone, 464 F.3d

1213, 1216 (10th C ir. 2006). M r. Broades’s motion meets this definition: He

challenges the district court’s M ay 2000 determination that his habeas claims

were procedurally barred on state law grounds. W e treat his petition, therefore,

as a true 60(b) motion.

      M r. Broades may appeal the district court’s dismissal of his motion only if

we first issue a CO A. 28 U.S.C. § 2253(c)(1). To secure a CO A, M r. Broades

must demonstrate that “reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that the issues presented w ere

adequate to deserve encouragement to proceed further.” M iller-El v. Cockrell,

537 U.S. 322, 336 (2003) (quoting Slack v. M cDaniel, 529 U.S. 473, 484 (2000))




                                         -4-
(internal quotation marks omitted). M r. Broades, however, has succeeded only in

demonstrating that his claims are without merit.

      To begin with, the Supreme Court in Crosby made clear that Artuz’s change

in the interpretation of the AEDPA statute of limitations, 28 U.S.C. § 2244(d), see

Artuz, 531 U.S. at 8, does not count as the sort of “extraordinary circumstance”

necessary for a successful Rule 60(b) motion. Crosby, 545 U.S. at 536-37.

Simply because the district court relied in part on a now-displaced interpretation

of § 2244(d)’s tolling provisions does not entitle M r. Broades to relief. But more

damning to M r. Broades’s appeal, the federal district court did not rely

exclusively on § 2244(d)(2) in dismissing his habeas petition: it cited independent

and adequate state law grounds that precluded it from considering Broades’s

habeas claims. M r. Broades does not challenge this finding. He does not so

much as address it. But the law is clear: W hen a state prisoner defaults his

federal claims in state court “‘pursuant to an independent and adequate state

procedural rule, federal habeas review . . . is barred unless the prisoner’ can

satisfy either the ‘cause and prejudice’ standard, or, alternatively, the

‘fundamental miscarriage of justice standard.’” M oore v. Reynolds, 153 F.3d

1086, 1096 (10th Cir. 1998) (quoting Coleman, 501 U.S. at 750). M r. Broades

has satisfied neither. H is habeas claims were properly dismissed.

      As to M r. Broades’s contention that no federal court has reviewed the

substance of his ineffective assistance of counsel claim, we refer him to our

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January 2001 denial of his “motion to recall mandate,” where we explicitly held

that “[t]o the extent M r. Broades . . . now contend[s] we never addressed the

merits of his other claims raised in his [original] petition”— namely, his

ineffective assistance of counsel claim— “we note he failed to raise them on

appeal, and thereby abandoned or waived them.” R. vol. 1, D oc. 49, App. 2 at 2

n.1.

       This is the fourth petition M r. Broades has brought before us attacking the

district court’s denial of habeas corpus some seven years ago. W e cannot say

emphatically enough: M r. Broades’s claims are without merit. They do not meet

the standard for relief spelled out in Rule 60(b), they do not deserve COA, and as

we have said twice previously, R. vol. 1, D oc. 49, App. 2; Broades v. Poppell,

No. 02-7156, slip op. at 1-2 (10th Cir. Dec. 30, 2002), they do not qualify him to

file a successive habeas petition. Further litigation on these issues w ould

constitute an egregious waste of taxpayer resources.

       Accordingly, we D EN Y M r. Broades’s request for a COA and DISM ISS

this appeal.

                                                     Entered for the Court,

                                                     M ichael W . M cConnell
                                                     Circuit Judge




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