                                                                                    FILED
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              October 8, 2019
                                      TENTH CIRCUIT
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court

 KERRY LUCERO,

           Petitioner – Appellant,

 v.                                                               No. 19-3126
                                                        (D.C. No. 5:08–CV–03062–SAC)
 DAVID MCKUNE, Warden, Lansing                                      (D. Kan.)
 Correctional Facility; ROGER
 WERHOLTZ, Kansas Secretary of
 Corrections; STEPHEN SIX, Attorney
 General for the State of Kansas,

           Respondents – Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before MATHESON, McKAY, and BACHARACH, Circuit Judges.


       Petitioner Kerry Lucero seeks a certificate of appealability to appeal the district

court’s denial of his Rule 60(b) motion, in which he sought to challenge the mandate

entered in a prior appeal in this 28 U.S.C. § 2241 habeas case.1


       *
         This order is not binding precedent except under the doctrines of law of the case, res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.

       1
        Petitioner’s motion appears to be a true Rule 60(b) motion, for which a certificate of
appealability is required, because he challenges “a procedural ruling of the habeas court which
precluded a merits determination of the habeas application.” Spitznas v. Boone, 464 F.3d 1213,
1215 (10th Cir. 2006).
       In 2008, Petitioner filed the underlying habeas petition, in which he argued that his

constitutional rights were violated when state officials aggregated his sentences from two

different criminal cases. The district court denied relief, holding that Petitioner had not

stated a valid claim for federal habeas relief. On appeal, this court held that Petitioner’s

release from prison had mooted his challenge to the legality of his imprisonment. See

Lucero v. McKune, 340 F. App’x 442, 444 (10th Cir. 2009). We therefore vacated the

district court’s judgment and remanded with instructions for the district court “to dismiss

without prejudice the underlying case as moot.” Id. In accordance with this order, the

district court dismissed the case without prejudice as moot on November 3, 2009.

       Nearly ten years later, in May 2019, Petitioner filed a “Motion to Correct Under

Rule 60(b),” in which he argued that the district court should vacate its earlier decision

because this court had erred in finding his habeas challenge to be moot. (R. at 27.)

Specifically, he claimed that his challenge to the aggregation of his state sentences was

not moot because (1) he was still on parole, and (2) he needed his sentences to be

invalidated in order to seek “damages for excess incarceration.” (R. at 29–30.) The

district court denied relief based on the mandate rule and law-of-the-case doctrine.

       In his filings to this court, Petitioner acknowledges that “it is clearly correct tha[t]

the District Court could not ignore the 10th Circuit’s mandate.” (Suppl. to Request for

C.O.A. at 1.) Nevertheless, he argues that “this does not end the matter” because we

should treat his Rule 60(b) motion in the district court and/or his motion in this court for a


                                              -2-
certificate of appealability as a motion to recall the mandate, which we can grant even if

the district court could not. (Id.) “Whether the district court was bound by the mandate .

. . , and whether this court is bound by principles of finality to enforce our prior . . .

determination, are separate inquiries.” Ute Indian Tribe of the Uintah & Ouray

Reservation v. Utah, 114 F.3d 1513, 1520 (10th Cir. 1997) (modifying mandate, after

holding that district court properly followed it, where Supreme Court had subsequently

issued a directly conflicting determination on the same reservation boundary question).

       Assuming without deciding that Petitioner’s motions could be construed as a valid

motion to recall the mandate, we hold that reasonable jurists would not dispute that he is

not entitled to the requested relief. See Okla. Chapter of Am. Acad. of Pediatrics v.

Fogarty, Nos. 05-5100, 05-5107, 2010 WL 3341881, at *2 (10th Cir. July 10, 2010)

(“assum[ing], without deciding, that Rule 60(b)(6) can be invoked” at appellate level and

denying relief because plaintiffs had not shown “extraordinary circumstances” as required

for relief under both Rule 60(b) and the court’s inherent power to recall the mandate).

“[T]he power to recall or modify a mandate is limited and should be exercised only in

extraordinary circumstances.” Ute Indian Tribe, 114 F.3d at 1522. “The sparing use of

the power demonstrates it is one of last resort, to be held in reserve against grave,

unforeseen contingencies.” Calderon v. Thompson, 523 U.S. 538, 550 (1998).

Moreover, appellate courts must be especially cautious when considering whether to

recall the mandate in a habeas case. See id. at 553–56. “In the absence of a strong


                                               -3-
showing of actual innocence, the State’s interests in actual finality outweigh the

prisoner’s interest in obtaining yet another opportunity for review.” Id. at 557 (internal

quotation marks, brackets, and citation omitted). Petitioner has not made such a showing

here. His disagreement with our earlier mootness decision, on a challenge to the

calculation of his sentence, is insufficient to establish the type of extraordinary

circumstance in which we could permissibly recall the mandate. Cf. id. at 541–42, 548,

559, 566 (holding that appellate court could not recall mandate even where majority of en

banc court belatedly agreed that panel decision had been erroneous; after mandate had

already issued in habeas case, it “was a grave abuse of discretion” for court to recall

mandate absent credible showing of actual innocence).

       Thus, “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.” Slack

v. McDaniel, 529 U.S. 473, 484 (2000). We therefore DENY Petitioner’s request for a

certificate of appealability and DISMISS the appeal.

                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




                                              -4-
