                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       May 26, 2006
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court


 RICHARD LEE COTHRUM ,

               Petitioner - A ppellant,                  No. 05-5220
          v.                                           N. D. Oklahoma
 STEVE HA RG ETT,                               (D.C. No. 97-CV-491-TCK)

               Respondent - Appellee.



                            OR D ER AND JUDGM ENT *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


      This is an appeal from a district-court order denying Appellant Richard Lee

Cothrum’s motion to declare its prior judgment void under Fed. R. Civ. P.

60(b)(4). W e find no error and affirm.

      In simplified form, the tortuous procedural history of this appeal is as

follows: On M ay 21, 1997, M r. Cothrum filed in the United States D istrict Court



      *
       After examining the brief 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
for the Northern District of Oklahoma an application for a writ of habeas corpus

under 28 U.S.C. § 2254. On September 28, 1999, the court dismissed the

application as untimely under the one-year limitations period imposed by

28 U.S.C. § 2244(d)(1). On November 15, 2000, M r. Cothrum filed a motion for

relief from the judgment under Fed. R. Civ. P. 60(b)(2), seeking to present new

evidence that the limitations period should have been tolled. The district court

construed his motion as a second or successive habeas petition and transferred it

to this court for authorization under 28 U.S.C. § 2244(b). By order dated

February 22, 2001, we denied authorization to file the transferred second petition.

On August 19, 2005, M r. Cothrum filed the pleading currently at issue, a motion

under Fed. R. Civ. P. 60(b)(4) for relief from the district court’s order transferring

his Rule 60(b)(2) motion on the ground that it is void. The district court denied

that motion (and M r. Cothrum’s later motion to reconsider), and he now appeals

the denial of his Rule 60(b)(4) motion and the motion to reconsider. W e have

jurisdiction under 28 U.S.C. § 1291, and review the district court’s decision on

the Rule 60(b)(4) motion de novo, see United States v. Buck, 281 F.3d 1336, 1344

(10th Cir. 2002). 1

      1
       It is an open question in this circuit whether a certificate of appealability
(COA) under 28 U.S.C. § 2253(c)(2), must be issued for a habeas petitioner to
appeal a district court’s ruling on a Rule 60(b) motion associated with his petition
for habeas corpus. See Gonzalez v. Crosby, 125 S. Ct. 2641, 2650 & n.7 (2005).
Here, the district court did not consider w hether to grant a C OA, presumably
because of the procedural posture of this case, and M r. Cothrum does not appear
                                                                         (continued...)

                                          -2-
      M r. Cothrum is probably correct that we and the district court erred in the

treatment of his Rule 60(b)(2) motion. At the time of those rulings, circuit

precedent held that “Rule 60(b) cannot be used to circumvent restraints on

successive habeas petitions” and “the successive petition restrictions contained in

the amendments to 28 U.S.C. § 2244(b) apply to Rule 60(b) proceedings,” Lopez

v. Douglas, 141 F.3d 974, 975 (10th Cir. 1998) (internal quotation marks and

brackets omitted). But the Supreme Court recently took a different view. In

Gonzalez v. Crosby, 125 S. Ct. 2641 (2005), which also involved a habeas

applicant’s assertion that the federal court had misapplied the statute of

limitations, the Court held that

      [i]f neither the motion itself nor the federal judgment from which it
      seeks relief substantively addresses federal grounds for setting aside
      the movant’s state conviction, allowing the motion to proceed as
      denominated creates no inconsistency with the habeas statute or
      rules. Petitioner’s motion in the present case, which alleges that the
      federal courts misapplied the federal statute of limitations set out in
      § 2244(d), fits this description.

Id. at 2648. M r. Cothrum’s Rule 60(b)(2) motion likewise appears to fit that

description: neither the underlying disposition of his habeas application on

statute-of-limitations grounds nor the motion, which purported to present new

evidence that the limitations period should have been tolled, addressed the



      1
       (...continued)
to seek one from us. W e need not resolve this issue in this case, however,
because were a COA required we would grant one to M r. Cothrum. See Slack v.
M cDaniel, 529 U.S. 473, 484 (2000) (stating criteria for granting COA).

                                         -3-
substantive attacks on his state-court conviction that were made in the habeas

application.

      Rule 60(b)(4), however, is not a remedy for every prior judicial error. Rule

60(b)(4) provides for relief from a judgment on the ground that “the judgment is

void.” Fed. R. Civ. P. 60(b)(4). A judgment is void “only if the court which

rendered it lacked jurisdiction of the subject matter, or of the parties, or acted in a

manner inconsistent with due process of law." Arthur Anderson & Co. v. Ohio (In

re Four Seasons Sec. Laws Litig.), 502 F.2d 834, 842 (10th Cir.1974). “[A]

judgment is not void merely because it is erroneous.” Id. Thus, our failure to

anticipate Gonzalez does not render void the decisions (by the district court and

us) on M r. Cothrum’s R ule 60(b)(2) motion. There can be no doubt that both

courts had jurisdiction to render their (probably erroneous) decisions regarding

whether M r. Cothrum’s pleading constituted a second habeas application.

      Still, if, as M r. Cothrum contends, the proceedings on his Rule 60(b)(2)

motion denied him due process he might be able to obtain relief under Rule

60(b)(4). See id. But his contention lacks merit. He complains of being denied

both “Access to the Courts” and “Notice and [a] right to object” by the transfer of

the m otion to us. A plt B r. at 2. Yet he was not denied access to the courts. He

presented his motion (and a motion to reconsider) to the district court, which

acted upon it consistently with legal authority as it stood at the time. In addition,

he had access to this court in its consideration of the motion as a second-or-

                                           -4-
successive petition. Similarly, his notice and opportunity-to-object arguments are

unavailing, given the opportunities he had to present his contentions before this

court; he filed both a motion and a reply brief in the proceedings considering his

Rule 60(b)(2) motion.

      Additionally, M r. Cothrum asserts that denial of his habeas claim on the

ground of untimeliness constituted a “M anifest Injustice.” A plt. Br. at 2. This is

not a ground for relief under Rule 60(b)(4), but it might suffice under Rule

60(b)(6), which covers “any other reason justifying relief from the operation of

the judgment.” See Fed. R. Civ. P. 60(b)(6). Although M r. Cothrum has not

invoked that rule, he is proceeding without counsel, so we will liberally construe

his pleading to raise a Rule 60(b)(6) motion. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972).

      Nevertheless, we are not persuaded that the denial of his original § 2254

application for untimeliness constituted a “manifest injustice.” M r. Cothrum’s

Oklahoma conviction for first-degree rape, robbery, and kidnapping became final

in February 1990, after he had exhausted his state-court direct appeals and the

period had passed for petitioning for a writ of certiorari from the United States

Supreme Court. W e have held that the one-year limitations period of the

Antiterrorism and Effective Dealth Penalty Act begins running at the time of its

enactment on April 24, 1996, for convictions, such as this one, that were final

before its enactment. See United States v. Simmonds, 111 F.3d 737, 744-46 (10th

                                         -5-
Cir. 1997), overruled on other grounds by United States v. Hurst, 322 F.3d 1256,

1260-61 & n.4 (10th Cir. 2003). M r. Cothrum therefore had over seven years,

until A pril 24, 1997, see Hurst, 322 F.3d at 1261 n.4, to file a timely habeas

application and yet did not file one until M ay 21, 1997. He pursued state post-

conviction relief, but even that avenue was exhausted by February 15, 1995, with

more than two years remaining for the timely filing of his application.

      M r. Cothrum asserted in his Rule 60(b)(2) motion and to us in this appeal

that he was incapacitated by mental illness that prevented him from timely filing

his § 2254 application. He urges us to consider such an incapacity to be an

extraordinary circumstance justifying tolling. See M iller v. M arr, 141 F.3d 976,

978 (10th Cir. 1998). To support his Rule 60(b)(2) motion he provided his prison

medical records from June 1994 to M ay 1997 as evidence of his mental illness.

Those records, however, are insufficient to demonstrate an incapacity that would

toll the limitations period. Although it is clear that he has experienced some

bouts with anxiety, perhaps severe, the records do not indicate that he was

confined to a mental institution or under inpatient care at any time (other than a

two-day period in June 1996 when he was apparently sent to another facility for

evaluation). The records suggest that his symptoms have been generally

controlled with medication and that his condition was not materially different in

M ay 1997, when he ultimately filed his voluminous application with the district

court. In this light we cannot conclude that his illness would justify equitable

                                          -6-
tolling. Therefore, no manifest injustice resulted from the district court’s failure

to address this new evidence when it was presented with his Rule 60(b)(2)

motion. He has not met his heavy burden to justify relief under Rule 60(b)(6).

See Searles v. Dechant, 393 F.3d 1126, 1131 (10th Cir. 2004) (“Such relief is

extraordinary and may only be granted in exceptional circumstances.” (internal

quotation marks and brackets omitted)).

      Finally, we have reviewed all the claims made in M r. Cothrum’s § 2254

application and are satisfied that there has been no fundamental miscarriage of

justice in the district court’s failure to address its merits. His allegation that his

state-court trial was fundamentally unfair because it was a “circus,” Aplt Br. at

40, appears to arise mainly from a variety of contempt citations and evidentiary

rulings that went against him, results brought about largely by his insistence on

representing himself at trial. That the jury and gallery occasionally may have

been guilty of speaking or even snickering during the proceedings does not render

the trial fundamentally unfair or rise to a constitutional violation. Again, he has

not shown exceptional circumstances justifying relief under Rule 60(b)(6).

      W e AFFIRM the district court’s denial of M r. Cothrum’s Rule 60(b)(4)

motion and the denial of his motion to reconsider that decision.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge

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