                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    August 17, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                        No. 12-5045
 MELDON ALLEN,                               (D.C. Nos. 4:03-CV-00473-TCK-FHM
                                                  and 4:01-CR-00031-TCK-3)
          Defendant-Appellant.                            (N.D. Okla.)


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges. **


      Defendant Meldon Allen entered a blind plea of guilty in 2002 to conspiring

to possess with intent to distribute in excess of five kilograms of cocaine in violation

of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(B)(ii),(iii); maintaining a place where

controlled substances are stored and managed in violation of 21 U.S.C. § 856;

and investing illegal drug profits in violation of 21 U.S.C. § 854.          Defendant

subsequently filed a motion to withdraw his guilty plea, asserting it was not knowing


      *
        This order is not binding precedent except under the doctrines of law of the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.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The matter is therefore
ordered submitted without oral argument.
and voluntary because he pled in haste during trial. The district denied the motion

following a hearing, and later sentenced Defendant to 252 months imprisonment. We

affirmed on direct appeal:

      In this case, Defendant made a knowing and voluntary decision to plead
      guilty to three of the many charges for which he was indicted.
      Defendant was represented by competent counsel at the time he entered
      the plea and did not seek to withdraw his plea until probation issued a
      PSR establishing his likely sentence. The district court weighed the
      appropriate factors in considering Defendant’s motion to withdraw his
      guilty plea and did not abuse its discretion in denying the motion.

United States v. Allen, 65 F. App’x 695, 698 (10th Cir. 2003) (unpublished).

      Defendant, now appearing pro se, next filed a 28 U.S.C. § 2255 motion to set

aside his sentence. In his motion and four “supplements” thereto, Defendant raised

in excess of ten claims. Among these was a claim that his trial attorney was

ineffective because he failed to object to a two-level sentencing enhancement based

on Defendant’s possession of a firearm during a drug trafficking offense. The

district court denied Defendant’s motion and further denied him a certificate of

appealability (COA) pursuant to § 2253(c)(2). We too denied Defendant a COA and

dismissed his appeal because Defendant failed to demonstrate that reasonable jurists

could debate whether his § 2255 motion should have been resolved in a different

manner or the issues it presented deserved additional consideration. United States

v. Allen, 287 F. App’x 638, 641–42, 644 (10th Cir. 2008) (unpublished). As to

Defendant claim that the district court improperly enhanced his sentence for

possession of a firearm, we noted “[t]he district court concluded all of these claims

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were procedurally barred due to [Defendant’s] failure to raise them on direct appeal

and that [Defendant] had failed to establish cause or prejudice [i.e., ineffective

assistance of counsel] to overcome this procedural bar.”         Id. at 643.      “After

reviewing [Defendant’s] application for COA and the record on appeal, we [found]

no basis for granting [Defendant] a COA on any of [his] claims.” Id.

      After the Supreme Court denied Defendant a writ of certiorari, he returned to

the district court and filed a “motion to correct procedural default of Rule 32

pursuant to Rule 60(b)(6).” United States v. Allen, 441 F. App’x 617, 617 (10th Cir.

2011) (unpublished). The district court held the motion in reality constituted a

second or successive unauthorized § 2255 motion and dismissed it for lack of

jurisdiction. Because Defendant’s motion raised a merits-based challenge to the

imposition of the firearm sentencing enhancement, we too construed it as an attempt

to file a second § 2255 motion:

      In analyzing whether Rule 60(b) arguments require authorization under
      § 2255(h), the first step is to determine whether the motion asserts non-
      merits Rule 60(b) arguments (which this court has referred to as a ‘true’
      60(b) motion) or asserts merits-focused, second or successive claims.

Id. at 617–18 (quoting In re Lindsey, 582 F.3d 1173, 1174–75 (10th Cir. 2009)). We

then denied Defendant a COA and dismissed his appeal because “reasonable jurists

could not debate the district court’s conclusion.” Id. at 618.

      Having learned the distinction between Rule 60(b) merits- and non-merits-

based arguments, Defendant then sought to challenge the firearm enhancement by


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filing in the district court a “motion to correct procedural default of Rules 5(b) and

7(c) of the Rules Governing § 2255 Cases pursuant to Rule 60(b)(6).” 1 This time,

the district court construed Defendant’s motion as arising under Rule 60(b) rather

than § 2255, because it “assert[ed] a defect in the integrity of the federal habeas

proceedings, as opposed to an error in the court’s resolution of the merits of his

claims.”   United States v. Allen, 2012 WL 443361, at *1 (N.D. Okla. 2012)

(unpublished) (internal quotations omitted) (citing Spitznas v. Boone, 464 F.3d 1213,

1224–25 (10th Cir. 2006)). The court nonetheless summarily denied Defendant’s

motion because the claims it presented did “not rise to the level of [the] ‘exceptional

circumstances’” necessary to warrant Rule 60(b) relief. Id. (quoting Davis v. Kan.

Dep’t of Corr., 507 F.3d 1246, 1248 (10th Cir. 2007) (“Relief under Rule 60(b) is

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

quotations omitted)). The court also denied Defendant a COA because he failed to

“demonstrate ‘that jurists of reason would find it debatable whether the [motion]

state[d] a valid claim of the denial of a constitutional right and . . . whether the



      1
         Rule 5(b) provides that where the district court directs the Government to
answer a § 2255 motion, “[t]he answer must address the allegations in the motion.
In addition it must state whether the moving party has used any other federal
remedies, including any prior post-conviction motions under these rules or any
previous rules, and whether the moving party received an evidentiary hearing.”
Meanwhile, Rule 7(c) states that where the record before the court on a § 2255
motions extends beyond those matters previously presented, “[t]he judge must give
the party against whom the additional materials are offered an opportunity to admit
or deny their correctness.”

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district court was correct in its procedural ruling.’” Id. at *2 (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

      Undeterred, Defendant filed a motion for reconsideration. The district court

concluded that no basis existed for reconsidering its prior ruling and denied the

motion. The court continued:

      The court also denies a certificate of appealability as to this ruling
      denying reconsideration of that ruling. Furthermore, Defendant is
      advised that any appeal from this ruling and the [prior] ruling . . . will
      be deemed frivolous and not taken in good faith. Therefore, Defendant
      will not be allowed to proceed in forma pauperis should he file a notice
      of appeal. See 28 U.S.C. § 1915(a)(3). He will be required to pay in
      full [the] $455.00 filing fee for any appeal from these rulings.

United States v. Allen, No. 01-CR-031-TCK, Order at 2 (N.D. Okla. Feb. 28, 2012)

(unpublished).

      Now before us are Defendant’s motions for a COA and to proceed in forma

pauperis (IFP) on appeal. Suffice to say we have thoroughly reviewed the record on

appeal and Defendant’s filing in support of his most recent claim of procedural

defects in the district court’s resolution of his § 2255 motion. We agree with the

district court that reasonable jurists could not disagree with its decision to deny

Defendant relief pursuant to Rule 60(b). Accordingly, once again we too DENY

Defendant a COA and DISMISS his appeal. His motion to proceed IFP is DENIED

as moot.

                                       Entered for the Court,

                                       Bobby R. Baldock
                                       United States Circuit Judge

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