                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    March 29, 2010
                    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 HENRY C. HOPKINS,

               Petitioner - Appellant,                   No. 09-4212
          v.                                               (D. Utah)
 HANK GALETKA,                                  (D.C. No. 2:99-CV-00652-DB)

               Respondent - Appellee.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

      Henry C. Hopkins, a Utah state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) in order to appeal the denial of Mr. Hopkins’

motion, pursuant to Fed. R. Civ. P. 60(b), challenging the district court’s 2001


      *
       This order is not binding precedent except under the doctrines of law of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.
dismissal of Mr. Hopkins 28 U.S.C. § 2254 petition for a writ of habeas corpus.

We deny Mr. Hopkins a COA and dismiss this appeal.

      Mr. Hopkins was convicted in a Utah state court of aggravated sexual

assault, and was sentenced to a mandatory minimum sentence of five years to life.

The Utah Supreme Court affirmed his conviction on direct appeal. State v.

Hopkins, 782 P.2d 475 (Utah 1989). In October 1989, Mr. Hopkins apparently

filed a motion in state court to correct an illegal sentence. That petition was

denied in November 1989, and Mr. Hopkins did not appeal that denial or pursue

any further state court proceedings. 1

      Mr. Hopkins then filed the instant federal habeas petition on August 20,

1999. On September 17, 2001, the district court dismissed the petition as barred

by the applicable statute of limitations. On June 2, 2009, Mr. Hopkins filed a

“Motion for Release from Judgment or Order,” arguing that the government had

committed fraud upon the court, that the district court committed plain error by

      1
        The record in this case is very sparse and it is difficult to discern what
exactly happened in the years between Mr. Hopkins’ conviction and today. While
the district court order currently under review does not allude to it, Mr. Hopkins
also apparently filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus on
January 22, 1990. He argued there was insufficient evidence to support his
conviction, that the court had erroneously refused requested jury instructions, that
the prosecutor made improper remarks during closing argument, that the court
erroneously denied Mr. Hopkins’ motion for a mistrial, and that appellate counsel
was ineffective. The matter was referred to a magistrate judge, who
recommended dismissal of the petition because it contained both exhausted and
unexhausted claims. See Rose v. Lundy, 455 U.S. 509 (1982). The district court
adopted the magistrate’s report and recommendation and dismissed the petition on
July 30, 1990.

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applying the requirements of the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”) to his case, and that the judgment of the district court is void. The

district court denied his motion, with the following explanation:

      “Rule 60(b) relief is extraordinary and may only be granted in
      exceptional circumstances.” Beugler v. Burlington Northern & Santa
      Fe Ry. Co., 490 F.3d 1224, 1229 (10 th Cir. 2007) [further quotation
      omitted]. To obtain relief a “motion under Rule 60(b) must be made
      within a reasonable time.” Fed. R. Civ. P. 60(c)(1). Specifically, a
      motion based on fraud must be made “no more than a year after the
      entry of the judgment or order.” Id. In this case, the court’s order
      dismissing petitioner’s petition for habeas corpus was entered on
      September 2001, eight years prior to the motion before the court. By
      the plain language of the rule, petitioner’s claim of fraud is untimely.
      Arguments that the judgment is void, however, are “not subject to
      any time limitations.” Orner v. Shalala, 30 F.3d 1307, 1310 (10 th
      Cir. 1994). Accordingly, the court considers Hopkins’s argument
      that the order was void.
             An order is void for Rule 60(b)(4) purposes if the “rendering
      court was powerless to enter it” due to lack of jurisdiction over the
      parties or subject matter. Gschwind v. Cessna Aircraft Co., 232 F.3d
      1342, 1346 (10 th Cir. 2000) [further quotation omitted]. In his
      motion, Hopkins failed to set forth any argument that would entitle
      him to relief under this standard. The court notes, that as a matter of
      statute, the district court has jurisdiction over petitions for habeas
      corpus. See 28 U.S.C. § 2241(a) (2008).
             Finally, Hopkins does not offer “any other reason” in his
      motion that merits relief under rule 60(b)(6). Therefore petitioner’s
      motion is DENIED.

Order at 1-2, R. Vol. 1 at 225-26. Mr. Hopkins now seeks a COA in order to

appeal that denial.

      The issuance of a COA is jurisdictional. We will issue a COA “only if the

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

28 U.S.C. § 2253(c)(2). To make this showing, Mr. Hopkins must demonstrate

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“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.

McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a

claim on its merits, the “petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” Id. When the district court dismisses a petition on procedural grounds,

the applicant must not only make a substantial showing of the denial of a

constitutional right; he must also demonstrate that the district court’s “dismissal

on procedural grounds was debatable or incorrect.” Id. at 485. “Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of

the case, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. at 484.

      As is evident from the district court’s brief and succinct dismissal of

Mr. Hopkins’ motion, Mr. Hopkins fails to make a substantial showing of the

denial of a constitutional right. Further, he does not cast doubt upon the district

court’s procedural analysis. Accordingly, we deny Mr. Hopkins a COA. We also

deny Mr. Hopkins permission to proceed on appeal in forma pauperis (“ifp”).




                                          -4-
      For the foregoing reasons, we DENY a COA and DENY permission to

proceed ifp, and we DISMISS this matter.

                                            ENTERED FOR THE COURT


                                            Stephen H. Anderson
                                            Circuit Judge




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