                                                                    FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                       UNITED STATES COURT OF APPEALS April 6, 2009
                                                            Elisabeth A. Shumaker
                                    TENTH CIRCUIT               Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                       No. 08-1330
                                           (D.C. Nos. 1:06-CV-01433-RPM and
 v.
                                                 1:01-CR-00395-RPM-1)
                                                        (D. Colo.)
 JAMES FLOYD CLEAVER,

           Defendant - Appellant.


                                       ORDER


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


       Defendant-Appellant James Floyd Cleaver seeks a certificate of

appealability (“COA”), see 28 U.S.C. § 2253(c), that would enable him to appeal

the district court’s decision denying his Fed. R. Civ. P. 60(b)(6) motion. Because

Cleaver has failed to establish that he is entitled to a COA, we DISMISS this

appeal. 1

I.     Background

       A jury convicted Cleaver of 1) destroying government property by fire,

2) forcibly interfering with Internal Revenue Service (“IRS”) employees and


       1
      We GRANT Cleaver’s motion to proceed on appeal in forma pauperis. See
28 U.S.C. § 1915.
administration, 3) suborning perjury, and 4) tampering with a witness. See

United States v. Cleaver, 163 Fed. App’x 622, 623 (10th Cir. Dec. 6, 2005)

(unpublished), cert. denied, 547 U.S. 1103 (2006). This court affirmed those

convictions and the 400-month sentence the district court imposed. See id. at

625, 632. Cleaver then filed a motion seeking relief from his convictions under

28 U.S.C. § 2255. The district court denied Cleaver § 2255 relief. Cleaver

appealed. See United States v. Cleaver, 236 Fed. App’x 359, 359 (10th Cir. May

30, 2007) (unpublished), cert. denied, 128 S. Ct. 518 (2007). This court denied

Cleaver a COA and dismissed his appeal. See id. Cleaver unsuccessfully sought

to file a second or successive 28 U.S.C. § 2255 motion for relief from his

convictions.

      Two years after the district court denied his initial § 2255 motion, Cleaver

filed a Fed. R. Civ. P. 60(b)(6) motion seeking relief from that decision. The

district court denied that motion. Cleaver now appeals from that decision.

II.   Analysis

      While a defendant cannot use a Rule 60(b) motion to circumvent the

restrictions placed on a federal prisoner asserting a second or successive § 2255

motion, see 28 U.S.C. § 2255(h), Cleaver’s Rule 60(b)(6) motion here is a “true”

Rule 60(b) motion; that is, it “attacks . . . some defect in the integrity of the

federal habeas proceeding,” rather than asserting claims challenging the

defendant’s conviction and sentence. Gonzalez v. Crosby, 545 U.S. 524, 530-32

                                          -2-
(2005) (28 U.S.C. § 2254 proceeding); see Spitznas v. Boone, 464 F.3d 1213,

1215-16 (10th Cir. 2006) (28 U.S.C. § 2254 proceeding); see also United States v.

Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006) (applying Gonzalez to § 2255

proceedings).

      More specifically, Cleaver asserts that, during the original § 2255

proceeding, he never received a copy of the Government’s response opposing

Cleaver’s § 2255 motion. When Cleaver discovered that the Government had

filed a response, which he had never received, Cleaver filed a motion with the

district court seeking an extension of time to file a reply and a motion asking the

district court to compel the Government to serve Cleaver with its response. The

district court never specifically addressed those motions. The court, instead,

denied Cleaver § 2255 relief without his ever filing a reply. Cleaver claims that

this procedure violated Rule 5(d), Fed. Rules Governing § 2255 Proceedings,

which provides that “[t]he moving party may submit a reply to the respondent’s

answer or other pleading within a time fixed by the judge.”

      Where, as here, “the district court correctly treated [Cleaver’s Rule 60(b)]

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.” Spitznas,

464 F.3d at 1217-18; see also Peach v. United States, 468 F.3d 1269, 1271-72

(10th Cir. 2006) (per curiam).




                                        -3-
        A COA may issue only “if the applicant has made a substantial showing
        of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). . . . In
        cases like this one, where the decision appealed from involves a
        procedural ruling of the district court, a COA may issue only if “the
        prisoner shows, at least, that jurists of reason would find it debatable
        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.” Slack v. McDaniel,
        529 U.S. 473, 484 (2000).

Spitznas, 464 F.3d at 1225; see also 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 entitle him to appeal the

denial of his Rule 60(b)(6) motion). Cleaver has failed to make that showing

here.

        “Rule 60(b)(6) “is a catchall provision, allowing relief from judgment for

‘any other reason justifying relief.’” Davis v. Kan. Dep’t of Corr., 507 F.3d

1246, 1248 (10th Cir. 2007). “Relief under Rule 60(b)(6) is extraordinary and

may only be granted in exceptional circumstances.” Davis, 507 F.3d at 1248

(quotation omitted). Relief under Rule 60(b)(6) “‘will rarely occur in the habeas

context.’” Omar-Muhammad, 484 F.3d at 1264 (quoting Gonzalez, 545 U.S. at

535).

        Here, after the district court denied Cleaver § 2255 relief, without letting

him first reply to the Government’s responsive pleading, Cleaver filed a motion

seeking to amend his § 2255 motion, a motion to alter or amend the district

court’s judgment, made pursuant to Fed. R. Civ. P. 59(e), and he pursued a direct

                                           -4-
appeal. Because Cleaver could have asserted, but did not assert, the procedural

objections of which he now complains in those post-judgment motions, and

especially as part of his direct appeal, he cannot now argue that he is entitled to

relief from the district court’s judgment under Rule 60(b)(6). See Davis, 507

F.3d at 1248 (noting “Rule 60(b)(6) . . . is not a substitute for an appeal”)

(quotation omitted); Colo. Interstate Gas Co. v. Natural Gas Pipeline Co. of Am.,

962 F.2d 1528, 1534 (10th Cir. 1992) (noting that “Rule 60(b)(6) cannot be

properly used to alter the substantive content of a judgment once it has been

affirmed on appeal except in extraordinary circumstances”). “‘There must be an

end to litigation some day.’” Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580

(10th Cir. 1996) (quoting Ackermann v. United States, 340 U.S. 193, 198

(1950)). 2

       2
      There are probably at least two other reasons why Cleaver is not entitled to
Rule 60(b)(6) relief.

        First, Cleaver’s Rule 60(b)(6) motion appears to be untimely. While
motions made under other provisions of Rule 60(b) must be filed within one year
of the date of the judgment from which relief is sought, there is no specific time
limit applicable to Rule 60(b)(6) motions. See Fed. R. Civ. P. 60(c)(1) (requiring
motions made under Rule 60(b)(1), (2) or (3) to be brought within one year); see
also Spitznas, 464 F.3d at 1225. Nevertheless, a litigant must still file a Rule
60(b)(6) motion within “a reasonable time.” Rule 60(c)(1); see also Spitznas, 464
F.3d at 1225. Because Cleaver waited two years to complain about his not getting
to file a reply, even though he knew immediately that he had not gotten that
opportunity, and because Cleaver pursued several post-judgment motions and a
direct appeal before ever raising this procedural problem, it does not appear that
Cleaver raised his Rule 60(b)(6) motion in a “reasonable time.”

                                                                        (continued...)

                                         -5-
      For these reasons, reasonable jurists could not find it debatable that the

district court erred in denying Cleaver relief, under Rule 60(b)(6), from the

court’s earlier decision denying Cleaver’s § 2255 motion. Therefore, we DENY

Cleaver a COA and DISMISS this appeal.


                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




      2
       (...continued)
      Second, Cleaver has never asserted any prejudice he suffered as a result of
not being able to file a reply. For these other reasons as well, Cleaver does not
appear entitled to Rule 60(b)(6) relief.

                                        -6-
