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

                                TENTH CIRCUIT                         July 28, 2014

                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

VINCENT WAYNE MCGEE,

             Petitioner-Appellant,                      No. 14-6056
v.                                              (D.C. No. 5:10-CV-00948-M)
JAMES RUDEK, Warden,                                  (W.D. Oklahoma)

             Respondent-Appellee.



                                     ORDER


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.



      Mr. Vincent McGee was convicted in state court of drug trafficking,

distribution of a controlled substance, unlawful use of a surveillance camera,

unlawful use of a police radio, and firearm possession after a conviction or during

probation. Mr. McGee filed a petition for habeas relief, which the district court

dismissed as untimely. Our court agreed that the action was untimely, declining

to issue a certificate of appealability and dismissing the appeal. Mr. McGee then

filed two motions for relief from the judgment under Federal Rule of Civil

Procedure 60(b)(6) and 60(d)(1)-(3), which the district court denied in separate

orders. In both orders, the court reasoned that Mr. McGee had not made any new
arguments justifying relief under Rule 60. Seeking to appeal these orders, Mr.

McGee requests a certificate of appealability. We deny this request and dismiss

the appeal.

I.    Standard for a Certificate of Appealability

      Mr. McGee is entitled to a certificate of appealability only if he makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2) (2012). Mr. McGee can satisfy “‘this standard by demonstrating

that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude that the issues presented are

adequate to deserve encouragement to proceed further.’” Dulworth v. Jones, 496

F.3d 1133, 1136-37 (10th Cir. 2007) (quoting Miller-El v. Cockrell, 537 U.S. 322,

327 (2003)).

      We apply this standard in light of Mr. McGee’s invocation of Rule 60.

Under this rule, we will issue a certificate of appealability only if reasonable

jurists could regard the district court’s procedural rulings as debatable. Spitznas

v. Boone, 464 F.3d 1213, 1225 (10th Cir. 2006).

      To determine whether the district court’s rulings were reasonably

debatable, we must examine the applicable standards in the district court and on

appeal. Relief under Rule 60(b)(6) is considered “extraordinary” and should be

granted only “in exceptional circumstances.” Bud Brooks Trucking, Inc. v. Bill


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Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990). Under Rule 60(d),

Mr. McGee had to show “a grave miscarriage of justice.” United States v.

Beggerly, 524 U.S. 38, 46-47 (1998) (discussing the standard for “independent

actions” for relief from a judgment, then governed by Fed. R. Civ. P. 60(b) and

now governed by Rule 60(d)).

      If our court were to entertain an appeal of the district court’s Rule 60

rulings, we would need to determine whether the district court abused its

discretion. See Davis v. Kansas Dep’t of Corrs., 507 F.3d 1246, 1248 (10th Cir.

2007).

      Thus, our task is to determine whether reasonable jurists could find an

abuse of discretion in the denial of Mr. McGee’s Rule 60 motions.

II.   Mr. McGee’s First Rule 60 Motion: Equitable Tolling

      In his first Rule 60 motion, Mr. McGee argued that the district court: (1)

had failed to address his equitable tolling arguments, and (2) had prematurely cut

off discovery. For these arguments, Mr. McGee relied on Rule 60(b)(6), (d)(1),

(d)(2), and (d)(3). The district court denied the motion, reasoning that Mr.

McGee had not advanced any new arguments to justify relief from the judgment.

We conclude that this ruling is not reasonably debatable.

      A.    Equitable Tolling




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      Mr. McGee argues that the district court should have applied equitable

tolling based on: (1) difficulty obtaining legal materials because of two race riots

and an ice storm, and (2) actual innocence. But we have already denied a

certificate of appealability on these issues, and Mr. McGee does not advance any

new arguments or present any previously unavailable evidence in support of his

Rule 60 motion. See McGee v. Rudek, Case No. 11-6241 (10th Cir. Feb. 27,

2012).

      Instead, Mr. McGee rehashes the same arguments and points to affidavits

that he presented to the district court. But Mr. McGee relied on these affidavits

in his earlier appeal to our court. Pet’r’s App. for a Cert. of Appealability at 4-5,

McGee v. Rudek, Case No. 11-6241 (10th Cir. Nov. 9, 2012). Because our court

has already considered the affidavits, the district court had the discretion to avoid

rehashing the issue. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th

Cir. 1991) (holding that the district court did not abuse its discretion in denying a

Rule 60(b)(6) motion that basically revisited issues already addressed and

rejected).

      B.     Opportunity for Discovery

      In addition, Mr. McGee argues that he should have had an opportunity to

conduct discovery. But again, Mr. McGee made the same argument in his prior

appeal. Pet’r’s App. for a Cert. of Appealability at 4(h), McGee v. Rudek, Case


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No. 11-6241 (10th Cir. Nov. 9, 2012). Our court has already considered the

argument and rejected it.

       Mr. McGee has not shown that the district court abused its discretion in

declining to find exceptional circumstances or a grave miscarriage of justice. Our

court has already declined to grant a certificate of appealability based on the

alleged discovery limitation. As a result, reasonable jurists could not regard the

district court’s decision as reasonably debatable.

III.   Mr. McGee’s Second Rule 60 Motion: Prosecutorial Misconduct

       The district court dismissed the habeas petition on the ground of

timeliness. Mr. McGee does not directly challenge the dismissal. Instead, he

alleges in his second Rule 60 motion that the Respondent misled the habeas court,

which led to the erroneous dismissal. This argument does not justify a certificate

of appealability.

       Mr. McGee acknowledges that his habeas petition was time-barred in the

absence of equitable tolling, which would require a sufficiently supported claim

of actual innocence. See Lopez v. Trani, 628 F.3d 1228, 1230 (10th Cir. 2010).

In dismissing the habeas petition, the district court concluded that Mr. McGee

had not established actual innocence. He attributes this ruling to deception by the

Respondent.




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      Mr. McGee presented this argument in his second Rule 60 motion, stating

there that the prosecutor had withheld two categories of evidence that would have

undercut the finding of guilt:

      ●      evidence that Derrick McGee committed perjury when he testified
             that he had not received favors or promises by the State; and

      ●      evidence that Justin Scott and Joshua Creekmore lied in the
             preliminary hearing.

This evidence might have undermined the jury’s finding, but it did not establish

actual innocence. McGee v. Rudek, Case No. 11-6241 (10th Cir. Feb. 27, 2012).

Because Mr. McGee did not make a sufficient showing of actual innocence, he

was not entitled to equitable tolling. Because equitable tolling did not apply, the

underlying habeas action would have remained untimely even if the Respondent

had committed misconduct in the earlier proceedings. 1

      Mr. McGee argues that he might have been able to show actual innocence,

but could not do so because the district court ruled that he could not conduct

discovery. And, Mr. McGee attributes that ruling to the Respondent’s

misrepresentations in the earlier habeas proceedings. These contentions are not
1
       Mr. McGee argues that the Respondent made “a knowing misrepresentation
of material facts” in the habeas proceedings, triggering Rule 60(b)(3). Mot.
Seeking Relief from Order/Judgment at 6 (Aug. 5, 2013). Mr. McGee did not
invoke Rule 60(b)(3) in the district court. See Mot. for Reconsideration (Aug. 29,
2013). But even if Mr. McGee had invoked Rule 60(b)(3) in the district court,
the motion would have been barred by the one-year period of limitations. See
Fed. R. Civ. P. 60(c)(1). Thus, even if the Respondent’s actions had led the
district court astray in the earlier habeas proceedings, these actions would not
entitle Mr. McGee to a certificate of appealability based on Rule 60(b)(3).
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new; they were previously raised in Mr. McGee’s unsuccessful appeal of the

denial of habeas relief. There, Mr. McGee stated:

      [T]he district court’s ruling adopting the Magistrate’s R&R, granting
      Respondent’s motion to dismiss [Doc. No. 16] and dismissing Pet’r
      for habeas corpus as untimely without conducting “Discovery” and
      on “Evidentiary Hearing” was procedurally wrong and in direct
      contradiction with the applicable standards and long-standing legal
      authority. Essentially, the Resp’t, the Magistrate, and the District
      Judge, all, made a guilt determination without a sufficient
      development of the facts. Which cannot be done in this case without
      the discovery and evidentiary hearing requested by Pet’r in [Doc.
      Nos. 27 and 28].

Pet’r’s App. for Cert. of Appealability at 4(b), McGee v. Rudek, Case No. 11-

6241 (10th Cir. Nov. 9, 2011). Our court rejected the argument, and Mr. McGee

cannot rehash it under the guise of a Rule 60 motion.

IV.   Disposition

      We deny the request for a certificate of appealability and dismiss the

appeal.

                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




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