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

                           FOR THE TENTH CIRCUIT                         June 12, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
NARENDRA CHAND,

              Petitioner−Appellant,

v.                                                         No. 12-2027
                                               (D.C. No. 2:06-CV-00444-RB-RHS)
JOE ROMERO, Warden; ATTORNEY                                (D. N.M.)
GENERAL OF THE STATE OF NEW
MEXICO,

              Respondents−Appellees.


                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY*


Before LUCERO, EBEL, and HOLMES, Circuit Judges.


      Narendra Chand, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s decision to construe his Fed. R.

Civ. P. 60(b) motion as an unauthorized second or successive 28 U.S.C. § 2254

habeas petition and dismiss it for lack of jurisdiction. We deny a COA and dismiss

the matter.




*
       This order is not binding precedent except under the doctrines of law of the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.
      In 2004, Mr. Chand entered a guilty plea to state charges of second degree

murder, aggravated burglary, interference with communications, and kidnaping. He

was sentenced to forty-seven years and 364 days, of which eight years was

suspended, for an actual sentence of forty years less one day. He filed a motion to

reconsider his sentence, which was denied. He then filed a petition for a writ of

habeas corpus in state court. That petition was denied. In May 2006, Mr. Chand

filed a § 2254 habeas petition. The district court denied the petition. Mr. Chand did

not appeal that decision.

      In August and September 2011, Mr. Chand filed motions in this court seeking

authorization to file a second or successive § 2254 habeas petition. Both of his

requests were denied. In December 2011, Mr. Chand filed a 60(b) motion in district

court. The district court concluded that the 60(b) motion constituted an attempt to

file a second or successive § 2254 claim without prior authorization and dismissed

the motion for lack of jurisdiction.

      Mr. Chand now seeks a COA to appeal from the district court’s dismissal. To

obtain a COA, Mr. Chand 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).

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

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


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the claim. 28 U.S.C. § 2244(b)(3)(A). In the absence of such authorization, a district

court lacks jurisdiction to address the merits of a second or successive § 2254 claim.

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). A 60(b) argument

should be treated as a second or successive § 2254 claim “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). A 60(b)

argument should not be treated as a successive § 2254 claim if it “challenges a defect

in the integrity of the federal habeas proceeding,” as long as “such a challenge does

not itself lead inextricably to a merits-based attack on the disposition of a prior

habeas petition.” Id. at 1216.

       Relying on Spitznas, Mr. Chand contends that he was challenging a defect in

the integrity of his federal habeas proceeding because the district court failed to

address his claim that he was actually innocent of the kidnaping charge. In Spitznas,

we noted that the failure to address a claim can qualify as a 60(b) argument because

“[t]he defect lies not in the district court’s resolution of the merits of the . . . claim

(since it never reached those merits), but in its failure to make any ruling on a claim

that was properly presented.” Id. at 1225. The key difference between Spitznas and

Mr. Chand’s case, however, is that the petitioner in Spitznas “properly presented” a

claim in his first habeas that the district court failed to review, whereas Mr. Chand

failed to properly present a claim for actual innocence in his first habeas petition and

instead sought to raise this new claim through his 60(b) motion.


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      In Spitznas, “the record reveal[ed] that the standard of proof claim was raised

in [petitioner’s] habeas petition and was continuously asserted throughout the habeas

proceedings. Notwithstanding [petitioner’s] continued assertion of this claim,

however, the district court never made a ruling on it.” Id. at 1224. We therefore

concluded that the petitioner in Spitznas was properly asserting a Rule 60(b)

argument and not a second or successive habeas claim. Id. at 1225.

      In contrast, the district court here explained that “Mr. Chand failed to raise any

claim of actual innocence of kidnaping, or actual innocence of any other crime, in his

habeas petition, the addendum to the habeas petition, or the second addendum to the

habeas petition.” R. at 315-16. The district noted that in Mr. Chand’s third

supplement to his habeas petition, he “does refer to innocence and kidnaping in the

same sentence, but stops short of explaining enough for a court to assume he is

asserting actual, factual innocence.” Id. at 316. The district court further noted that

“[t]his third supplement to the habeas petition is 46 pages and mostly

incomprehensible due to a stream of consciousness writing style.” Id. The district

court concluded by explaining:

      While Mr. Chand is correct that the Court’s review of the first habeas
      petition and all of the supplements did not include an analysis of a claim
      of actual innocence of kidnaping, this does nothing to attack the
      integrity of the Court’s decision because the Court did consider the
      claims that Mr. Chand did raise in his habeas petition and three
      addendums.

Id.



                                          -4-
       Because Mr. Chand’s 60(b) motion “continue[d] to argue against his state

court conviction by asserting a new claim, rather than actually attacking the integrity

of the first federal habeas petition,” the district court determined that Mr. Chand was

not presenting a proper 60(b) argument but was instead attempting to assert a second

or successive habeas claim. Id. at 316-17. The district court further determined that

it was not in the interest of justice to transfer Mr. Chand’s successive claim to this

court for authorization as Mr. Chand had previously sought authorization for this

claim on two other occasions. The court therefore dismissed the claim for lack of

jurisdiction.

       Unlike the petitioner in Spitznas, Mr. Chand did not properly present an

actual-innocence claim in his first habeas petition or any of his addendums or

supplements. His 60(b) motion therefore was not challenging a defect in the integrity

of the habeas proceeding but was seeking instead to raise a new claim for habeas

relief. Reasonable jurists could not debate that the district court was correct in its

procedural ruling to treat Mr. Chand’s 60(b) motion as an unauthorized second or

successive § 2254 petition and dismiss it for lack of jurisdiction. Accordingly, we

DENY a COA and DISMISS this matter.


                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk



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