                                                                FILED
                                                    United States Court of Appeals
                       UNITED STATES COURT OF APPEALS       Tenth Circuit

                               FOR THE TENTH CIRCUIT                     July 22, 2016

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                         No. 16-5024
                                             (D.C. Nos. 4:11-CV-00572-CVE-TLW &
MANUEL BONILLA,                                      4:08-CR-00051-CVE-1)
a/k/a Carlos Contreras,                                    (N.D. Okla.)

       Defendant - Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, EBEL, and O’BRIEN, Circuit Judges.


      Manuel Bonilla, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the district court’s decision construing his

Fed. R. Civ. P. 60(b) motion as an unauthorized second or successive 28 U.S.C.

§ 2255 motion and dismissing it for lack of jurisdiction. We deny a COA and

dismiss this matter.

      In 2010, Mr. Bonilla pleaded guilty to two counts from a thirteen-count third

superseding indictment: one count of participating in a continuing criminal


*
       This order is not binding precedent except under the doctrines of law of the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.
enterprise and one count of participating in a conspiracy to possess and distribute

cocaine, marijuana and methamphetamine. He also pleaded guilty to a charge of

money laundering from a separate information. He was sentenced to 293 months’

imprisonment.

      Mr. Bonilla filed a direct appeal, but the government moved to enforce the

appeal waiver in his plea agreement. Mr. Bonilla sought to raise a claim of

ineffective assistance of counsel in the negotiation of his plea agreement. We

granted the motion to enforce and dismissed the appeal, noting that the dismissal was

without prejudice to Mr. Bonilla raising his ineffective-assistance-of-counsel claim in

a collateral proceeding. See United States v. Bonilla, 394 F. App’x 500, 502

(10th Cir. 2010).

      In 2011, Mr. Bonilla filed a § 2255 motion. The district court denied the

motion and Mr. Bonilla did not seek a certificate of appealability.

      In 2016, Mr. Bonilla filed a motion seeking relief under Fed. R. Civ. P.

60(b)(6). The district court concluded that the 60(b) motion constituted an attempt to

file second or successive § 2255 motion without prior authorization and dismissed

the motion for lack of jurisdiction.

      Mr. Bonilla now seeks a COA to appeal from that decision. To obtain a COA,

he must show that “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).




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       A prisoner may not file a second or successive § 2255 motion unless he first

obtains an order from the circuit court authorizing the district court to consider the

motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a

district court lacks jurisdiction to address the merits of a second or successive § 2255

motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

       A 60(b) motion should be treated as a second or successive § 2255 motion “if

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

petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215

(10th Cir. 2006). A 60(b) motion may not be treated as a successive § 2255 motion if

it “challenges a defect in the integrity of the federal habeas proceeding,” as long as

“such a challenge does not itself lead inextricably to a merits-based attack on the

disposition of a prior habeas petition.” Id. at 1216.

       In his initial § 2255 motion, Mr. Bonilla raised claims of ineffective assistance

of counsel and claims challenging the validity of his plea agreement. He also

requested that the district court hold an evidentiary hearing on his claims. In his

60(b) motion, Mr. Bonilla argued that the district court’s order denying his motion to

withdraw his guilty plea and its order denying his § 2255 motion should be vacated.

He again challenged the validity of his guilty plea and asserted that the district court

erred in not granting him an evidentiary hearing.

       In his COA application, Mr. Bonilla asserts that the district court erred by

failing to grant him an evidentiary hearing on the government’s alleged breach of the


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plea agreement and he argues that this is a procedural defect that was properly raised

in his 60(b) motion. We are not persuaded by Mr. Bonilla’s argument.

      In our decision in In re Lindsey, 582 F.3d 1173 (10th Cir. 2009), we addressed

a similar argument. In Lindsey, the movant filed a 60(b) motion in which he argued

that the district court erred in deciding his § 2255 motion without granting him an

evidentiary hearing. The district court transferred his 60(b) motion to this court after

concluding that it constituted an unauthorized second or successive motion. The

movant filed a motion for remand, arguing that he was challenging the integrity of

the federal proceedings and therefore his motion did not require authorization. We

disagreed.

      As we explained, the movant’s motion fell into neither of the categories of

Rule 60(b) arguments that would not require authorization. “The first type of Rule

60(b) assertion that does not require authorization is one challenging a procedural

ruling . . . which precluded a merits determination.” Lindsey, 582 F.3d at 1175

(internal quotation marks omitted). We then explained that “the district court’s

decision not to hold an evidentiary did not preclude a merits determination on

[movant’s] § 2255 motion; it was the result of a merits determination.” Id.

      That same reasoning holds true here because the district court denied the

request for a hearing after deciding that Mr. Bonilla had not raised any meritorious

claims. As the district court explained: “Defendant requests an evidentiary hearing

on his § 2255 motion, but he has not asserted a colorable claim for relief. Thus, the


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record conclusively shows that defendant is entitled to no relief and the Court is not

required to hold an evidentiary hearing before denying defendant’s § 2255 motion.”

Supp. R., Vol. I at 98.

       “The second type of Rule 60(b) argument that does not require authorization is

a challenge to a defect in the integrity of the federal habeas proceeding, provided that

such a challenge does not itself lead inextricably to a merits-based attack on the

disposition of a prior habeas petition.” Lindsey, 582 F.3d at 1175 (internal quotation

marks omitted). But, as was the case in Lindsey, Mr. Bonilla’s 60(b) motion “does

lead inextricably to a merits-based attack” because “[t]here could be no error in

denying an evidentiary hearing unless the district court made an incorrect merits

determination.” Id. at 1176. “It follows that to argue that the court erred in denying

an evidentiary hearing on a § 2255 motion, the prisoner generally has to be attacking

the district court’s analysis of the merits.” Id.

       Mr. Bonilla’s 60(b) motion “in substance or effect asserts or reasserts a federal

basis for relief from [his] underlying conviction.” Spitznas, 464 F.3d at 1215.

Reasonable jurists could therefore not debate that the district court was correct in its

procedural ruling to treat Mr. Bonilla’s 60(b) motion as an unauthorized second or

successive § 2255 motion and dismiss it for lack of jurisdiction. Accordingly, we

deny a COA and dismiss this matter.

       We have addressed Mr. Bonilla’s Motion for a COA without requiring the

ordinary prepayment of costs and fees. Thus, we have granted his motion to proceed


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without prepayment of costs and fees. Granting that motion, however, does not

excuse Mr. Bonilla’s obligation ultimately to pay all filing and docketing fees

associated with this appeal. It only postponed his obligation to pay those appellate

costs and fees until after the Tenth Circuit has ruled on the merits of his motion,

which we have now done. The purpose of this deferral of time for payment of costs

and fees is to ensure that indigent defendants can have the merits of their appeal

considered. It is not the purpose of the deferral, however, to relieve an indigent

appellant of the ultimate obligation to pay appellate fees and costs as is required of

all appellants.

       Thus, even though we have now decided on the merits that Mr. Bonilla is not

entitled to a COA, which means he cannot continue with this appeal, he remains

obligated ultimately to pay the required filing and docketing fees connected with his

appeal. The amount due is $505.00. Payment shall be made to the Clerk of the

District Court at 333 W. 4th St. #411, Tulsa, Oklahoma, 74103. Mr. Bonilla has the

option to contact the Clerk of the District Court to arrange for a payment schedule


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




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