                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 2, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 DOUGLAS WEST,

          Petitioner-Appellant,
                                                        No. 09-7090
 v.
                                             (D.C. No. CV-97-00243-JHP-KEW)
                                                        (E.D. Okla.)
 RON CHAMPION, Warden,

          Respondent-Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Defendant-Appellant Douglas West, an Oklahoma state prisoner appearing

pro se, seeks a certificate of appealability (“COA”) to challenge the district

court’s denial of his motions under Federal Rule of Civil Procedure 60(b)(4) and

(6). 1 Mr. West filed these motions to alter or amend the district court’s denial of


      *
              This Order is not binding precedent, except under the doctrines of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 the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Mr. Scott filed a pro se application for a COA and opening brief. We
construe these pro se filings liberally. See Haines v. Kerner, 404 U.S. 519,
520–21 (1972); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the

“petition”). We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(c)(1)(A), deny the request for a COA, and dismiss this matter.

                                 BACKGROUND

      In January 1990, Mr. West and Allan Mercer were embroiled in a dispute

arising from the sale of a used car. On January 29, 1990, Mr. West shot and

killed Mr. Mercer as the decedent entered the convenience store operated by Mr.

West. On February 20, 1990, Mr. West was charged with first-degree murder in

Oklahoma state court. The case was tried to a jury, which returned a verdict of

guilty. The court sentenced Mr. West to life imprisonment without the possibility

of parole.

      On January 11, 1993, the Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed Mr. West’s conviction on direct appeal. The OCCA subsequently denied

his petition for rehearing on March 23, 1993. On February 12, 1996, the state

district court denied Mr. West’s application for post-conviction relief. On

November 6, 1996, the OCCA affirmed this denial of relief.

      On April 22, 1997, Mr. West filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of

Oklahoma. The magistrate judge recommended the denial of the petition. On

September 27, 2000, the district court adopted the recommendation and denied the

petition. The Tenth Circuit denied Mr. West’s application for a COA and


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dismissed the matter.

      More than eight years later, on January 20, 2009, Mr. West filed a motion

to alter or amend the district court’s judgment dismissing his habeas petition,

pursuant to Federal Rule of Civil Procedure 60(b)(4) and (6). He filed a second,

essentially identical motion on February 19, 2009. In these motions, Mr. West

claims that the district court erroneously applied a procedural bar to the claim that

he “was denied his Sixth and Fourteenth Amendment constitutional rights to

compulsory process . . . by the trial court’s exclusion of evidence of [his] post-

traumatic stress disorder.” E.g., R. at 495 (Pet’r’s Mot. Pursuant to Rule 60(B)(4)

and/or (6) to Alter or Amend J., filed Feb. 19, 2009) (emphasis omitted). Mr.

West claims that the application of this procedural bar deprived him of due

process and constituted a defect in the integrity of the habeas proceedings.

      On September 23, 2009, the district court denied the motions. The district

court held that the judgment was not void under Rule 60(b)(4) because Mr. West

had adequate notice and opportunity to be heard on his claim and failed to

challenge the procedural bar in either his objections to the magistrate judge’s

ruling or his appeal to the Tenth Circuit. The district court also held that Mr.

West was not entitled to relief under Rule 60(b)(6) because his motion was

untimely and failed to articulate any grounds for relief.

                                   DISCUSSION

      The district court denied Mr. West’s Rule 60(b) motions, without resolving


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whether they constituted “second or successive” habeas petitions. First, when

analyzing a Rule 60(b) motion, we must “consider each of the issues raised in the

motion in order to determine whether it represents a second or successive petition,

a ‘true’ Rule 60(b) motion, or a mixed motion.” Spitznas v. Boone, 464 F.3d

1213, 1224 (10th Cir. 2006). Second, if the motion is a “true” Rule 60(b) motion,

we must determine whether Mr. West is entitled to a COA. Id. at 1224–25.

I.    Second or Successive Habeas Petition or “True” Rule 60(b) Motion

      Congress restricts the filing of second or successive habeas petitions under

28 U.S.C. § 2254. 28 U.S.C. § 2244(b); In re Lindsey, 582 F.3d 1173, 1174 (10th

Cir. 2009) (per curiam). A Rule 60(b) motion constitutes “a second or successive

petition if it in substance or effect asserts or reasserts a federal basis for relief

from the petitioner’s underlying conviction.” Spitznas, 464 F.3d at 1215. By

contrast, a “true” Rule 60(b) motion “(1) challenges only a procedural ruling of

the habeas court which precluded a merits determination of the habeas

application; or (2) challenges 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 motion.” Id. at 1215–16

(citation omitted) (citing Gonzalez v. Crosby, 545 U.S. 524, 532 n.4, 538 (2005)).

      In this action, the motions are “true” Rule 60(b) motions rather than second

or successive petitions. Mr. West asserts that the district court erroneously

applied a procedural bar to deny his claim regarding post-traumatic stress


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disorder, without reaching the merits. See Gonzalez, 545 U.S. at 532 n.4;

Spitznas, 464 F.3d at 1216 (“[A] motion asserting that the federal district court

incorrectly dismissed a petition [because of a] procedural bar . . . constitutes a

true 60(b) motion.”). Mr. West also alleges that this procedural bar was a defect

in the integrity of the habeas proceedings because he was deprived of due process

on this claim. See Spitznas, 464 F.3d at 1216. Thus, because Mr. West’s attack is

on procedural grounds and does not assert a federal basis for the district court to

vacate his underlying conviction, his motions are “true” Rule 60(b) motions.

II.   Certificate of Appealability

      “If the district court correctly treated the motion . . . as a ‘true’ Rule 60(b)

motion and denied it, we will require the movant to obtain a [COA] before

proceeding with his or her appeal.” Id. at 1217–18. “A COA is a jurisdictional

pre-requisite to our review.” Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir.

2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). 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). When the district court denies the

petitioner’s claim on the merits, “[t]he petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When

the district court denies the petitioner’s claims on procedural grounds, the

petitioner must demonstrate “that jurists of reason would find it debatable


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whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Id. (emphasis added); accord Omar-Muhammad v.

Williams, 484 F.3d 1262, 1264 (10th Cir. 2007) (applying this standard when

deciding whether a § 2254 petitioner was entitled to a COA that would enable him

to appeal the denial of his Rule 60(b)(6) motion).

      “Rule 60(b) allows a party to seek relief from a final judgment, and request

reopening of his case, under a limited set of circumstances . . . .” Gonzalez, 545

U.S. at 528. The six grounds that may justify relief are as follows:

             (1) mistake, inadvertence, surprise, or excusable neglect; (2)
             newly discovered evidence that, with reasonable diligence,
             could not have been discovered in time to move for a new trial
             under Rule 59(b); (3) fraud (whether previously called intrinsic
             or extrinsic), misrepresentation, or misconduct by an opposing
             party; (4) the judgment is void; (5) the judgment has been
             satisfied, released or discharged; it is based on an earlier
             judgment that has been reversed or vacated; or applying it
             prospectively is no longer equitable; or (6) any other reason
             that justifies relief.

Fed. R. Civ. P. 60(b). We review the denial of a Rule 60(b)(4) motion de novo,

United States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002), and the denial of a

Rule 60(b)(6) motion for abuse of discretion, Beugler v. Burlington N. & Santa

Fe Ry. Co., 490 F.3d 1224, 1229 (10th Cir. 2007).

      A.     Rule 60(b)(4)

      Rule 60(b)(4) requires a court to grant relief if “the judgment is void.”



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Fed. R. Civ. P. 60(b)(4); see V. T. A., Inc. v. AIRCO, Inc., 597 F.2d 220, 224 n.8

(10th Cir. 1979) (“If voidness is found, relief is not a discretionary matter; it is

mandatory.”). Although Rule 60(b)(4) is not limited by the timeliness provisions

of Rule 60(c), Buck, 281 F.3d at 1344, “[i]n the interest of finality, the concept of

setting aside a judgment on voidness grounds is narrowly restricted.” V. T. A.,

597 F.2d at 225. “A judgment is void only if the court which rendered it lacked

jurisdiction of the subject matter, or of the parties, or acted in a manner

inconsistent with due process of law.” Buck, 281 F.3d at 1344 (internal quotation

marks omitted). Under Rule 60(b)(4), a litigant was afforded due process if

“fundamental procedural prerequisites–particularly, adequate notice and

opportunity to be heard–were fully satisfied.” Orner v. Shalala, 30 F.3d 1307,

1310 (10th Cir. 1994). “[A] judgment is not void merely because it is erroneous.”

Buck, 281 F.3d at 1344 (internal quotation marks omitted).

      In this action, the district court denied Mr. West’s Rule 60(b)(4) motion

because Mr. West was afforded due process and the judgment was not void. Mr.

West claims that reasonable jurists could debate whether the district court

violated his due process rights when it applied a procedural bar to his

constitutional claim regarding the exclusion of evidence of his post-traumatic

stress disorder. Mr. West argues that the district court deprived him of a

“meaningful hearing” because it did not “(1) make an independent assessment of

the state court record, and (2) apply the applicable federal law with regard to the


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procedural bar asserted by the state.” Aplt.’s Opening Br. and Request for COA

at 4.

        Based on our review of the record, the magistrate judge conducted an

independent review of the state court record and applied the relevant law when

recommending the application of the procedural bar to Mr. West’s claim

involving his alleged post-traumatic stress disorder. The district court likewise

affirmed and adopted this recommendation after a “full consideration of the

pleadings filed in this case and the applicable legal authorities.” R. at 391 (Dist.

Ct. Order, filed Sept. 27, 2000). Furthermore, Mr. West does not dispute that he

had adequate notice of this procedural bar and that he had the opportunity to

oppose its application before the magistrate judge, the district court, and the

Tenth Circuit. 2 Thus, reasonable jurists could not debate the district court’s

conclusion that Mr. West was afforded due process and that the judgment is not

void.

        B.    Rule 60(b)(6)

        Rule 60(b)(6) allows a party to seek relief from a final judgment for “any

other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6); accord Davis v. Kan.

Dep’t of Corr., 507 F.3d 1246, 1248 (10th Cir. 2007). Although Rule 60(b)(6) is

        2
             The State initially raised this procedural bar in its response to Mr.
West’s habeas petition. Mr. West was not only aware of the procedural bar
argument, but he also argued against its application to his claims before the
magistrate judge and the district court. However, Mr. West neglected to raise this
issue on appeal to the Tenth Circuit.

                                         -8-
a “grand reservoir of equitable power to do justice in a particular case,” Van

Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991) (internal quotation

marks omitted), it remains subject to certain limitations. Relief under Rule

60(b)(6) “is extraordinary and may only be granted in exceptional circumstances,”

Davis, 507 F.3d at 1248 (internal quotation marks omitted), which ‘“rarely occur

in the habeas context.’” Omar-Muhammad, 484 F.3d at 1264 (quoting Gonzalez,

545 U.S. at 535). A litigant also may not premise its Rule 60(b)(6) motion on one

of the grounds enumerated in Rules 60(b)(1)-(5). Gonzalez, 545 U.S. at 528;

Spitznas, 464 F.3d at 1225 n.11. Finally, a litigant must file a Rule 60(b)(6)

motion “within a reasonable time” after entry of the judgment or order. Fed. R.

Civ. P. 60(c)(1).

      In this action, the district court denied Mr. West’s Rule 60(b)(6) motion on

procedural grounds as untimely. 3 Mr. West filed this motion more than eight



      3
              As an alternative basis for denying the Rule 60(b)(6) motion, the
district court concluded that Mr. West “failed to articulate his grounds for relief”
under Rule 60(b)(6). In construing Mr. West’s pro se Rule 60(b)(6) motion
liberally, however, we find that he argues essentially the same grounds for relief
under both Rule 60(b)(4) and Rule 60(b)(6). E.g., R. at 497 (“This court acted in
a manner inconsistant [sic] with due process of law when it procedurally barred
petitioner’s claim in ground seven and petitioner is therefore entiteld [sic] to
relief under Rule 60(B)(4) and/or (6).” (emphasis omitted)). Thus, Mr. West has
not waived this claim on appeal. Nevertheless, Mr. West failed to raise a
cognizable claim under Rule 60(b)(6). Mr. West requests relief under Rule
60(b)(6) because the district court violated his due process rights, which is the
same basis as his request under Rule 60(b)(4). This claim lacks merit because
“[a] Rule 60(b)(6) motion may not be used as a vehicle to re-allege 60(b)(4)
allegations.” Spitznas, 464 F.3d 1225 n.11; see Gonzalez, 545 U.S. at 528.

                                         -9-
years after the district court’s judgment on his habeas petition, which is not

within the “reasonable time” contemplated by Rule 60(c)(1). Fed. R. Civ. P.

60(c)(1); see, e.g., Sorbo v. United Parcel Serv., 432 F.3d 1169, 1178 (10th Cir.

2005) (upholding a district court’s determination that an unexplained one-year

delay between judgment and a Rule 60(b) motion was not reasonable). Despite

the extensive delay in filing the motion, Mr. West provided the district court with

no justification for the delay. Thus, reasonable jurists could not debate whether

the district court correctly denied Mr. West’s Rule 60(b)(6) motion on procedural

grounds.

                                  CONCLUSION

      For the foregoing reasons, we DENY Mr. West’s application for a COA

and DISMISS this matter.

                                 ENTERED FOR THE COURT


                                 Jerome A. Holmes
                                 Circuit Judge




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