                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                       UNITED STATES CO URT O F APPEALS
                                                                        July 31, 2009
                                                       Elisabeth A. Shumaker
                                TENTH CIRCUIT              Clerk of Court
                           __________________________

 U N ITED STA TES O F A M ER ICA ,

          Plaintiff - Appellee ,

 v.                                                        No. 09-4013
                                                             ( D. Utah )
 M IGU EL AV ALO S-VA SQUEZ ,                   (D.Ct. Nos. 2:07-CV-00948-TC and
                                                  2:04-CR-00708-JTG-DN -ALL )
          Defendant - Appellant .
                         ____________________________

                               OR D ER AND JUDGM ENT *


Before H ARTZ , EBEL , and O’BRIEN , Circuit Judges.




      After examining the briefs and the appellate record, this panel has agreed to

honor A ppellant’s waiver of oral argument. See Fed. R. App. P. 34(f); 10th Cir.

R. 34.1(G). Therefore, this case stands submitted on the briefs.

      M iguel Avalos-Vasquez, a federal prisoner proceeding pro se, 1 seeks a

certificate of appealability (COA) to appeal from the district court’s denial of his



      *
         This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation --
(unpublished). 10th Cir. R. 32.1(A).

      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil

Procedure.

                                I. BACKGROUND

      Avalos-Vasquez was sentenced to 120 months (the statutory minimum)

after pleading guilty to conspiracy to distribute fifty grams or more of actual

m etham phetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). On

direct appeal, his attorney filed a brief pursuant to Anders v. California, 386 U.S.

739 (1967), and moved to withdraw claiming there were no nonfrivolous issues to

be raised on appeal. W e agreed, granted counsel’s motion to withdraw and

dismissed the appeal. See United States v. Avalos-Vasquez, 250 Fed. Appx. 235,

237-38 (10th Cir. 2007) (unpublished).

      Avalos-Vasquez filed a M otion to Vacate, Set Aside or Correct Sentence by

a Person in Federal Custody pursuant to 28 U.S.C. § 2255 claiming his guilty plea

was involuntary due to his mental illness and/or incompetency and his appellate

counsel was ineffective for failing to present evidence in support of a sentencing

downward departure. The district court denied relief, concluding the evidence

demonstrated Avalos-Vasquez’s guilty plea was knowing and voluntary and he

had received a downward departure to the lowest sentence allowed by law, the

statutory minimum. Avalos-Vasquez filed a notice of appeal. W e dismissed for

lack of jurisdiction because the notice of appeal w as untimely. See United States

v. Avalos-Vasquez, No. 09-4000 (10th Cir. Feb. 3, 2009).

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      Eight months after the district court denied his § 2255 motion, Avalos-

Vasquez filed a motion for relief from judgment under Rule 60(b) of the Federal

Rules of Civil Procedure. The district court denied the motion concluding it

lacked jurisdiction over the motion because Avalos-V asquez’s case was closed.

Avalos-Vasquez filed a timely notice of appeal. The district court did not act on

the notice of appeal; this silence is deemed a denial of a COA. See Fed. R. App.

P. 22(b) (“If an applicant files a notice of appeal, the district judge who rendered

the judgment must either issue a [COA] or state why a certificate should not

issue.”); 10th Cir. R. 22.1(C) (“The district court must consider the propriety of

issuing a [CO A] in the first instance. Failure of the district court to issue a

[COA] within thirty days of filing the notice of appeal shall be deemed a

denial.”). Avalos-V asquez seeks a COA from this Court.

                                      II. D ISC USSIO N

      The district court denied Avalos-Vasquez’s Rule 60(b) motion without

determining whether it represented a second or successive § 2255 motion. “Our

first task, therefore, is to consider each of the issues raised in the motion in order

to determine whether it represents a second or successive petition, a ‘true’ Rule

60(b) motion, or a mixed motion,” i.e., “a motion containing both true Rule 60(b)

allegations and second or successive habeas claims.” Spitznas v. Boone, 464 F.3d

1213, 1217, 1224 (10th Cir. 2006).

      In his Rule 60(b) motion, Avalos-Vasquez argued (1) he did not receive the

                                           -3-
government’s response to his § 2255 motion and as a result he was denied the

opportunity to file a traverse (reply) brief in violation of his due process rights

and (2) his counsel’s ineffectiveness caused him to receive an additional 60

months imprisonment and denied him his right to a direct appeal of his illegal

sentence. The first argument is a true Rule 60(b) allegation because it

“challenges a defect in the integrity of the federal habeas proceeding.” Id. at

1216; see also United States v. Luke-Sanchez, No. 08-4200, 2009 W L 1303150, at

*1 (10th Cir. M ay 11, 2009) (unpublished) (stating Rule 60(b) motion based on

government’s failure to serve its response on petitioner and petitioner’s inability

to file a reply brief is a true motion); United States v. Cleaver, No. 08-1330, 2009

W L 903408, at * 1 (10th Cir. Apr. 6, 2009) (unpublished) (same). 2 The latter

argument, however, constitutes a second or successive habeas claim because “it in

substance or effect asserts or reasserts a federal basis for relief from the

petitioner’s underlying conviction.” Spitznas, 464 F.3d at 1215-16. Therefore, w e

are confronted with a “mixed motion” and address each claim separately.

A. Rule 60(b) Allegation

      A COA is required to appeal from the denial of a true Rule 60(b) motion.

See United States v. Pullen, 285 Fed. Appx. 535, 536 (10th Cir. 2008)

(unpublished) (§ 2255 proceeding), cert. denied, 129 S. Ct. 1018 (2009); Spitznas,

      2
        Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Luke-Sanchez and Cleaver as we would opinions from another circuit,
persuasive because of their reasoned analyses.

                                          -4-
464 F.3d at 1218 (§ 2254 proceeding). W e will issue a CO A only if the petitioner

“has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). Under this standard, a petitioner must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). “W hen the district

court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue when the prisoner

shows, at least, 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.” Id.

       The district court denied the Rule 60(b) motion for lack of jurisdiction

because Avalos-Vasquez’s case was closed. This was error because a district

court retains jurisdiction in civil cases to consider and deny a Rule 60(b) motion

even after an appeal has been taken. See Blinder, Robinson & Co. v. United

States SEC, 748 F.2d 1415, 1420 (10th Cir. 1984). Nevertheless, Avalos-Vasquez

is not entitled to a C OA .

       “Relief under Rule 60(b) is extraordinary and may only be granted in

exceptional circumstances.” Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1248

                                           -5-
(10th Cir. 2007) (quotations omitted). This case is no exception. The district

court denied Avalos-Vasquez’s § 2255 motion on the merits because his claims

failed as a matter of law . W e fail to see, and Avalos-V asquez does not suggest,

how he could have corrected these shortcomings with a traverse brief.

B. Second or Successive Claim

      Avalos-Vasquez may only file a second or successive § 2255 motion if he

first obtains authorization from this court pursuant to 28 U.S.C. § 2255(h).

United States v. Harper, 545 F.3d 1230, 1232 (10th Cir. 2008). He did not obtain

such authorization. Had the district court properly construed Avalos-Vasquez’s

Rule 60(b) motion as alleging an unauthorized second or successive habeas claim,

it would have had two options: (1) transfer the claim to this Court to decide

whether to permit a second or successive § 2255 proceeding if the transfer would

be in the “interests of justice” or (2) dismiss the claim for lack of jurisdiction

because a district court has no authority to entertain a second or successive

§ 2255 motion unauthorized by this court. Id. The district court did neither

because it erroneously concluded it did not have jurisdiction over Avalos-

Vasquez’s motion as the case was closed. In any event, had the court transferred

the claim to this Court for a determination of whether to permit a successive §




                                          -6-
2255 motion, we would have denied such permission because the claim does not

satisfy the requirements of § 2255(h). 3

        Had the district court dismissed the claim for lack of jurisdiction because it

has no authority to entertain a second or successive § 2255 claim absent our

authorization, we would have denied a COA as no reasonable jurists could debate

the court’s decision to dismiss for lack of jurisdiction. Id. at 1233 (“[W ]e hold

that the district court’s dismissal of an unauthorized § 2255 motion is a final

order in a proceeding under section 2255 such that § 2253 requires petitioner to

obtain a COA before he or she may appeal.”) (quotations omitted). Avalos-

Vasquez’s claim that counsel’s ineffectiveness caused him to receive an

additional 60 months imprisonment and denied him his right to a direct appeal is

“a challenge to the legality of [his] detention . . . [which] must be brought

pursuant to § 2255 unless it appears that the remedy by this motion is inadequate

or ineffective.” Id. (quotations omitted). Avalos-V asquez did not demonstrate

the § 2255 remedy would be inadequate or ineffective and therefore he was

3
    Section 2255(h) provides:

A second or successive motion must be certified as provided in section 2244 by a panel of
the appropriate court of appeals to contain--

        (1) newly discovered evidence that, if proven and viewed in light of the evidence
        as a whole, would be sufficient to establish by clear and convincing evidence that
        no reasonable factfinder would have found the movant guilty of the offense; or

        (2) a new rule of constitutional law, made retroactive to cases on collateral review
        by the Supreme Court, that was previously unavailable.

                                             -7-
required to pursue his claim under § 2255. “[O]nce this is established, it then

follows as a matter of course— as [Avalos-V asquez’s] motion was indisputably

successive and unauthorized by this court— that the district court [would have]

had no jurisdiction to proceed.” Id. at 1234.

      This matter is DISM ISSED. Avalos-Vasquez’s motion to proceed in form a

pauperis on appeal is GR ANTED.

                                       Entered by the C ourt:

                                       Terrence L. O ’Brien
                                       United States Circuit Judge




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