                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 13, 2015
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 15-5015
 v.                                         (D.C. Nos. 13-CV-00708-GKF-FHM
                                                and 4:12-CR-00132-GKF-1)
 RAMON VELASCO,                                         (N.D. Okla.)

       Petitioner - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, LUCERO, and McHUGH, Circuit Judges.


      Petitioner-Appellant Ramon Velasco, a federal inmate appearing pro se,

seeks a certificate of appealability (COA) to appeal from the district court’s

denial of his Rule 60(b) motion. Mr. Velasco argues that the district court failed

to resolve all of the claims raised in his unsuccessful § 2255 motion. 28 U.S.C. §

2255. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we deny his request

for a COA and dismiss the appeal.



                                    Background

      On October 24, 2012, Mr. Velasco was convicted of conspiracy to

distribute methamphetamine and possession with intent to distribute
methamphetamine and was sentenced to 188 months’ imprisonment. On direct

appeal, this court affirmed his sentence. United States v. Velasco, 543 F. App’x

759 (10th Cir. 2013).

      On October 28, 2013, Mr. Velasco filed a § 2255 motion challenging his

conviction. First, he argued that he was improperly charged by information rather

than indictment, as no record of concurrence was entered on the docket indicating

that all twelve jurors voted to indict. No. 4:12-CR-132-GKF-1, Dkt. No. 197, at

8. Second, he argued that the government fraudulently filed his indictment with

an electronic signature. Id. at 15.

      Mr. Velasco’s claims were not raised on direct appeal and were thus

procedurally barred. Dkt. No. 208, at 3. In addition, the district court rejected

both claims on their merits. When arraigned, Mr. Velasco confirmed that he had

read the indictment and understood the charges against him. Id. at 2. Thus, Mr.

Velasco was charged by indictment. Id. In addition, the district court held that

the jury foreman’s electronic signature was sufficient for an indictment. Id. at 3.

This court denied Mr. Velasco’s request for a COA. United States v. Velasco,

576 F. App’x 824 (10th Cir. 2014).

      In his Rule 60(b) motion, Mr. Velasco claims that the district court

procedurally erred by failing to address all of his arguments. According to Mr.

Velasco, the district court misread his § 2255 motion and did not address whether

an indictment was properly “found” against him. 1 R. 19. Unpersuaded, the

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district court denied Mr. Velasco’s Rule 60(b) motion, holding that it had not

overlooked any properly presented claim. Thus, Mr. Velasco failed to identify

any exceptional defect that would warrant relief. Id. at 24–26.



                                     Discussion

      Mr. Velasco is appealing the denial of a Rule 60(b) motion in the context of

a collateral attack; thus, he must obtain a COA to proceed. Spitznas v. Boone,

464 F.3d 1213, 1217–18 (10th Cir. 2006). A COA may only be issued if

“reasonable jurists could debate whether… 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. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks and citation omitted).

      Mr. Velasco does not specify which subsection of Rule 60(b) he relies

upon, but the only provision potentially implicated is 60(b)(6). Rule 60(b)(6), the

catchall provision, permits relief from a final judgment for “any other reason that

justifies relief.” Relief under this provision “is extraordinary and may only be

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

1246, 1248 (10th Cir. 2007) (citation omitted).

      It is unclear whether the district court, in denying Mr. Velasco’s § 2255

motion, substantively addressed his argument that he was not properly indicted

because no record of concurrence appeared on the indictment. However, even

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assuming it did not, relief under Rule 60(b)(6) is unwarranted, as the district

court’s reasons for rejecting his claims on procedural grounds apply with equal

force to such a claim. Any allegation that his indictment was faulty was untimely

because Mr. Velasco did not raise it on direct appeal. See Velasco, 576 F. App’x

at 825. And, contrary to Mr. Velasco’s repeated assertions, defects in an

indictment do not deprive a court of jurisdiction. United States v. Cotton, 535

U.S. 625, 630–31 (2002); see also United States v. Maravilla, 566 F. App’x 704,

707 (10th Cir. 2014) (“[T]he indictment’s not including a voting tally of the grand

jurors doesn’t render it invalid.”).

      The district court’s denial of Mr. Velasco’s Rule 60(b) motion is not

reasonably debatable.

      We DENY a COA, DENY IFP status, and DISMISS the appeal.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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