                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          April 17, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 05-8120
          v.                                            (D. of Wyo.)
 RICARDO JOSE SUAREZ also                     (D.C. Nos. 04-CV-211-ABJ and
 known as Rick Erevia,                               02-CR-45-ABJ)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges. **


      Ricardo J. Suarez, a federal prisoner appearing pro se, appeals the district

court’s denial of his motion for relief from judgment pursuant to Fed. R. Civ. P.

60(b). He argues the district court should not have dismissed his original 28




      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
U.S.C. § 2255 habeas corpus petition as time-barred under the applicable one-year

limitations period. We affirm.

                                  I. Background

      In July 2002, Suarez pled guilty to conspiracy with intent to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), b(2)(B) and 846 and

was sentenced to 200 months incarceration. He did not file a direct appeal but did

file four separate pro se motions beginning in May 2003. Each of these motions

was ultimately denied. In July 2004, he filed a habeas petition pursuant to 28

U.S.C. § 2255, alleging that his counsel was ineffective. The district court

dismissed his ineffective assistance motion as time-barred. 1

      Suarez then requested this court for permission to file a second or

successive habeas petition pursuant to 28 U.S.C. § 2244, which we denied.

Finally, he filed the action serving as the subject of this appeal: a Rule 60(b)

motion, asserting that the district court erred in denying his habeas petition. To

this end, he made two distinct arguments. First, he suggested equitable tolling

should apply, arguing that his § 2255 petition, although untimely, should relate

back to his pro se motions in May 2003, as such motions were inartfully drafted


      1
         Suarez also asserted in this petition that his sentence was illegal under the
Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296 (2004). The
district court rejected this argument, holding that Blakely is not retroactively
applicable to initial habeas petitions. See United States v. Price, 400 F.3d 844,
849 (10th Cir. 2005). Suarez does not appeal this ruling.

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attempts to assert a § 2255 petition. In any event, he also argues, the district

court should have sua sponte notified him of the need to file a habeas petition

before such a petition became untimely.

      The district court rejected both arguments and denied his Rule 60(b)

motion. It reasoned that his previous motions simply requesting document

production and evidentiary hearings could not be reasonably construed to

challenge the constitutionality of his criminal conviction and sentence. Moreover,

the court found no reason for equitable tolling of the limitations period.

                                    II. Analysis

      The Supreme Court recently held that a 60(b) motion alleging a “defect in

the integrity of the federal habeas proceedings” under § 2254 is not the equivalent

of a second or successive habeas proceeding. Gonzalez v. Crosby, 125 S. Ct.

2641, 2648 (2005). Applying this standard, the Court permitted a habeas

petitioner to bring a Rule 60(b) motion challenging the district court’s denial of

his habeas claim as time-barred. Id. at 2650.

      Suarez makes a similar argument here: the district court’s erroneous

application of the limitations period precluded review of his § 2255 claim on the

merits. Thus, because Suarez alleges a defect in the integrity of the habeas

proceedings, his claim is not the equivalent of a successive habeas petition. See

United States v. Scott, 414 F.3d 815, 816 (7th Cir. 2005) (extending the reasoning


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of Gonzalez to § 2255 motions which implicate similar concerns of

successiveness); United States v. Bell, 159 F. App’x 48, 50 (10th Cir. 2005)

(unpublished) (same). We review his claim accordingly.

         Rule 60(b)(1) permits a district court to provide relief to a criminal

defendant from a final judgment due to “mistake, inadvertence, surprise, or

excusable neglect.” We review the denial of a 60(b) motion for abuse of

discretion. See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005). Rule

60(b) relief “is extraordinary and may only be granted in exceptional

circumstances.” Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.

2000).

         Although a district court is to construe a pro se petitioner’s pleadings

liberally, Suarez’s motions in May 2003 were simply insufficient to put the

district court on notice that he intended to challenge the constitutionality of his

conviction or sentence. Moreover, Suarez recognized in one such motion that a

timely habeas petition required filing before August 2003. As such, we cannot

have reasonably expected the district court to have further notified Suarez

regarding his need to submit a habeas petition in a timely manner.

         Nor is there any reason to subject Suarez’s habeas petition to equitable

tolling. Equitable tolling could be appropriate where “a prisoner is actually

innocent, when an adversary’s conduct – or other uncontrollable circumstances –


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prevents a prisoner from timely filing, or when a prisoner actively pursues

judicial remedies but files a defective pleading during the statutory period.”

Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (internal citations omitted).

Suarez contends he is factually innocent of the violent crime of burglary, which

served as a predicate offense to enhance his sentence. After reviewing the record,

we agree with the district court that Suarez is not entitled to equitable tolling on

this ground. This court previously refused to authorize a second or successive

habeas petition for exactly the same reasons, and we find no reason to disrupt that

ruling here. We are equally unpersuaded that Suarez’s skeletal petitions should

have tolled the limitations period. “[I]gnorance of the law, even for an

incarcerated pro se petitioner, generally does not excuse prompt filing.” Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (quotation omitted).

                                  III. Conclusion

      Accordingly, because the district court did not abuse its discretion in

denying Suarez’s 60(b) motion, we AFFIRM.

                                                      Entered for the Court

                                                      Timothy M. Tymkovich
                                                      Circuit Judge




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