                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            SEP 20 1999
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

    JOSEPH L. WILLIAMS,

                Petitioner-Appellant,

    v.                                                    No. 98-1413
                                                      (D.C. No. 96-D-523)
    RANDY HENDERSON; ATTORNEY                              (D. Colo.)
    GENERAL OF THE STATE OF
    COLORADO,

                Respondents-Appellees.




                             ORDER AND JUDGMENT           *




Before ANDERSON and KELLY , Circuit Judges, and           BROWN , ** Senior
District Judge.




         After examining appellant’s brief and appellate record, this panel has

determined unanimously that oral argument would not materially assist the


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
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.

       Petitioner Joseph L. Williams appeals from the           district court’s denial of a

post-judgment motion entitled “Motion to Review Entire Record.” The                  district

court denied his requests to proceed without prepayment of fees, for the

appointment of appellate counsel, and for a certificate of appealability. Petitioner

took an earlier appeal in this case from the         district court’s dismissal of his habeas

application and denial of his motion for reconsideration. Because we conclude

that the “Motion to Review Entire Record” was a motion pursuant to Fed. R. Civ.

P. 60(b) which should have tolled the pendency of his earlier appeal, we also

conclude that this court was without jurisdiction to consider that appeal.            See MIF

Realty L.P. v. Rochester Assocs.     , 92 F.3d 752, 755 (8th Cir. 1996). The order and

judgment entered in that earlier appeal,       Williams v. Henderson , No. 96-1330,

1997 WL 176389 (10th Cir. Apr. 14, 1997) (unpublished order and judgment),

cert. denied , 118 S. Ct. 208 (1997), is void.        See United States v. 51 Pieces of

Real Property , 17 F.3d 1306, 1309 (10th Cir. 1994)          . Therefore, we hereby recall

the mandate and vacate the order and judgment entered in that appeal.            1




1
      Because we vacate an earlier decision of the court, this order and judgment
has been circulated to the panel which decided the earlier appeal; each member
has concurred.

                                               -2-
       The district court ruled on petitioner’s “Motion to Review Entire Record”

on October 16, 1998. Petitioner filed a timely notice of appeal, vesting this court

with jurisdiction to consider his challenges to that ruling, as well as his arguments

in opposition to the district court’s earlier rulings on his habeas application and

his motion for reconsideration.    See Fed. R. App. P. 4(a)(4). Our jurisdiction

arises under 28 U.S.C. § 1291.

       Upon consideration of the challenges raised in petitioner’s earlier appellate

briefs and oral argument before this court, we adopt the rationale set forth in

Williams v. Henderson , 1997 WL 176389, and deny petitioner a certificate of

appealability on those issues. In his current appellate brief, petitioner raises a

single challenge to the   district court’s denial of his “Motion to Review Entire

Record.” The district court’s ruling is reviewed for abuse of discretion only.        See

Stubblefield v. Windsor Capital Group    , 74 F.3d 990, 994 (10th Cir. 1996) (denial

of Rule 60(b) motion). Petitioner maintains that the    district court was legally

obligated to review the entire record following the magistrate judge’s

recommendation to dismiss his habeas application for failure to state a cognizable

habeas claim, and not just those issues to which petitioner objected. Petitioner

cites no authority for this assertion and, indeed, the applicable statute is to the

contrary. See 28 U.S.C. § 636(b)(1). Because petitioner has not made “a




                                           -3-
substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we DENY petitioner a certificate of appealability on this issue.

      Accordingly, we DISMISS this appeal. Petitioner’s request to proceed

without prepayment of costs or fees is granted.



                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




                                         -4-
