                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     April 9, 2012
                     UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                      Clerk of Court
                                  TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 12-3022
                                             (D.C. Nos. 2:08-CR-20126-CM-JPO-1
    DAVID A. KOSTELEC,                              & 2:10-CV-02014-CM)
                                                           (D. Kan.)
                Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


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


         David A. Kostelec, a federal prisoner proceeding pro se, seeks to appeal the

district court’s dismissal of his Fed. R. Civ. P. 60(b) motion as an unauthorized

second or successive 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2255(h) (placing

restrictions on second or successive § 2255 motions and requiring circuit court

authorization to proceed in district court). We deny a certificate of appealability

(COA) and dismiss this proceeding.

         Mr. Kostelec pleaded guilty to four counts involving conspiracy, wire

fraud, making false statements to a federally insured financial institution, and


*
       This order is not binding precedent except under the doctrines of law of the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.
identity theft. He did not appeal, but proceeding pro se, he filed a § 2255 motion.

The district court denied the motion, holding that some of the claims were barred

by the waiver of the right to bring a § 2255 motion in Mr. Kostelec’s plea

agreement and that those claims that were outside the scope of the waiver did not

establish ineffective assistance of counsel.

      Mr. Kostelec did not immediately learn about the denial of his § 2255

motion. Once he discovered the decision, he filed a Rule 60(b) motion. In

addition to noting certain alleged errors in the court’s order, the Rule 60(b)

motion stated that the court had neglected to decide one of the claims presented in

the § 2255 motion. The district court held that the Rule 60(b) motion was

attempting to assert unauthorized second or successive § 2255 claims and

dismissed it for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251

(10th Cir. 2008) (per curiam).

      Mr. Kostelec now requests a COA from this court. See United States v.

Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). To obtain one, he must show both

“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); see also Miller-El v. Cockrell, 537 U.S.

322, 336 (2003) (“[A] petitioner must show that reasonable jurists could debate

whether (or, for that matter, agree that) . . . the issues presented were adequate to

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deserve encouragement to proceed further.” (brackets and internal quotation

marks omitted)).

      A prisoner’s post-conviction filing (however entitled) should be treated like

a second or successive § 2255 motion (and therefore subject to the authorization

requirements of § 2255(h)) if it asserts or reasserts claims of error in the

prisoner’s conviction. See Gonzalez v. Crosby, 545 U.S. 524, 531-32, 538 (2005);

United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). But authorization

under § 2255(h) is not required “when a Rule 60(b) motion attacks, not the

substance of the federal court’s resolution of a claim on the merits, but some

defect in the integrity of the federal habeas proceedings.” Gonzalez, 545 U.S. at

532. In Spitznas v. Boone, 464 F.3d 1213, 1225 (10th Cir. 2006), this court held

that an allegation that the district court failed to consider a habeas claim asserts a

defect in the integrity of the federal habeas proceedings, and therefore it does not

require authorization. Mr. Kostelec argues that his Rule 60(b) motion was not

subject to § 2255(h) because it asserted that the district court failed to adjudicate

one of the claims set forth in his § 2255 motion.

      In light of Spitznas, reasonable jurists could debate whether the district

court erred in declining to exercise jurisdiction over the failure-to-decide claim.

But reasonable jurists could not debate whether the Rule 60(b) motion presents a

valid failure-to-decide issue or deserves any further proceedings.




                                          -3-
      The Rule 60(b) motion asserted that the district court failed to decide

“Claim 3(a),” which the Rule 60(b) motion characterized as an actual innocence

claim. R., Vol. 1 at 100. In the § 2255 motion, however, Claim 3 was presented

as a claim for ineffective assistance of counsel. See id. at 44 (describing claim 3

as ineffective assistance of counsel); id. at 53 (entitling argument “3. Ineffective

Assistance of Counsel Led the Defendant to Enter an Unknowing and Involuntary

Plea to Count Three”). In denying relief under § 2255, the district court

addressed and rejected the alleged ineffective assistance. Therefore, the

failure-to-decide allegation was meritless. 1

      The motion to proceed without prepayment of costs and fees is GRANTED.

A COA is DENIED and this matter is DISMISSED.

      Judge O’Brien dissents from the grant of leave to proceed without

prepayment of costs and fees.


                                                Entered for the Court




                                                ELISABETH A. SHUMAKER, Clerk




1
       To the extent that the Rule 60(b) motion attempted to raise a new claim of
actual innocence, such claim was subject to § 2255(h). See Gonzalez, 545 U.S. at
532 (“A motion that seeks to add a new ground for relief . . . will of course
qualify [for treatment as a second or successive habeas claim].”).

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