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

                            FOR THE TENTH CIRCUIT                            August 18, 2017
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
JASON BROOKS,

      Petitioner - Appellant,

v.                                                          No. 17-1177
                                                   (D.C. No. 1:16-CV-00895-LTB)
LOU ARCHULETA, Warden; CYNTHIA                                (D. Colo.)
COFFMAN, Attorney General of the State
of Colorado,

      Respondents - Appellees.
                      _________________________________

                                ORDER DENYING
                       CERTIFICATE OF APPEALABILITY*
                        _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________


      Jason Brooks, a Colorado state prisoner proceeding pro se,1 seeks a certificate

of appealability (COA) to challenge the district court’s denial of his Federal Rule of

Civil Procedure 60(b) motion for relief from its judgment dismissing his 28 U.S.C.

§ 2254 habeas petition. Mr. Brooks also requests leave to proceed in forma pauperis.

      *
         This order is not binding precedent, except under the doctrines of law of the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
         We liberally construe Mr. Brooks’s filings because he is proceeding pro se.
See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). Nevertheless, a pro
se litigant must comply with fundamental procedural rules. Id. And our “rule of
liberal construction stops . . . at the point at which we begin to serve as his advocate.”
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we decline both requests

and dismiss this appeal.

                                I.     BACKGROUND

       In 2010, Mr. Brooks pleaded guilty in Colorado state court to four counts of

securities fraud and was sentenced to 32 years’ imprisonment. As part of his plea, he

also agreed to pay over $5 million in restitution.

       In 2014, Mr. Brooks filed his first 28 U.S.C. § 2254 petition challenging the

legality of his conviction. The district court dismissed it in part and denied it in part.

On appeal, we denied Mr. Brooks’s application for a COA and dismissed the matter.

See Brooks v. Archuleta, 621 F. App’x 921 (10th Cir. 2015) [hereinafter Brooks I]

(unpublished).

       In July 2015, Mr. Brooks received notice from a Colorado state court clerk that

his unpaid restitution was subject to a monthly 1% interest charge under Colo. Rev.

Stat. § 18-1.3-603(4). In August 2015, Mr. Brooks filed his fourth motion for post-

conviction relief in the state trial court under Colorado Rule of Criminal Procedure

35(c). He claimed that his trial counsel was ineffective for failing to advise him about

the interest charge, and that the State had breached the plea agreement by enforcing

the interest charge in violation of his Fourteenth Amendment due process rights.

       In January 2016, the trial court denied the Rule 35(c) motion as untimely, as

procedurally barred because Mr. Brooks had filed at least three prior post-conviction

motions challenging his conviction or sentence, and on the merits because it lacked

authority to modify the statutory interest charge. Mr. Brooks did not file an appeal.

                                             2
He instead filed in the trial court a motion to reconsider, which the trial court denied.

       In February 2016, Mr. Brooks sought authorization from this court to file a

second or successive habeas petition to pursue his claim that the State had breached

the plea agreement. We denied authorization, but stated that if Mr. Brooks’s claims

arose from new events, then his petition would not be second or successive. See In re

Brooks, No. 16-1052, Order at 2 (10th Cir. Mar. 23, 2016). Because his claim was

susceptible to such a construction, we considered whether we should in the interests

of justice transfer the matter to the district court. Id. at 3. In the end, we concluded

that transfer was unwarranted because Mr. Brooks’s failure to exhaust the claim by

timely appealing the trial court’s order raised an anticipatory procedural bar. Id.

(citing Frost v. Pryor, 749 F.3d 1212, 1231–32 (10th Cir. 2014)).

       In March 2016, Mr. Brooks filed in the state trial court another post-conviction

motion under Rule 35(a), arguing that the assessment of interest made his sentence

illegal. The trial court denied relief in April 2016, determining that Mr. Brooks had

raised no new issues. Mr. Brooks then appealed to the Colorado Court of Appeals.

       While that appeal was pending, Mr. Brooks commenced on April 20, 2016, a

second habeas action in federal district court. He claimed that the State violated his

constitutional due process rights when it breached the plea agreement in July 2015 by

including post-judgment interest as part of the restitution award as required under

Colorado law. In a July 2016 order, the district court concluded that Mr. Brooks’s

petition was not second or successive because it arose after the prior habeas action

had concluded. See Brooks v. Archuleta, No. 16-cv-00895-GPG, 2016 WL 8914532,

                                             3
at *2 (D. Colo. July 26, 2016) [hereinafter Brooks II]. But the court dismissed the

petition as unexhausted and procedurally barred. Id. at *3. And it concluded that Mr.

Brooks failed to establish cause and prejudice for his procedural default or that a

failure to consider the claim would result in a fundamental miscarriage of justice. Id.

at *4. In March 2017, a panel of this court denied Mr. Brooks’s request for a COA

because reasonable jurists could not debate whether the district court was correct in

its procedural ruling. Brooks v. Archuleta, 681 F. App’x 705, 706–07 (10th Cir.

2017) (unpublished), petition for cert. filed, No. 16-9434.

      Undeterred, Mr. Brooks returned to district court and filed a Federal Rule of

Civil Procedure 60(b)(6) motion for relief from judgment. Mr. Brooks argued that the

district court erred in concluding that his claim is procedurally barred. In support, he

relied on a single sentence in the district court’s July 2016 order that he misquoted

and mischaracterized. Mr. Brooks also insisted this court erroneously denied his

application for a COA “based on the merits of the wrong case.”

      The district court denied relief in April 2017. The court first determined that

Mr. Brooks’s motion was a true Rule 60(b) motion, and not a second or successive

application, because in it Mr. Brooks challenged the court’s procedural ruling that

precluded a merits determination. See Spitznas v. Boone, 464 F.3d 1213, 1215–16

(10th Cir. 2006) (stating that a Rule 60(b) motion is a true Rule 60(b) motion if it

“challenges only a procedural ruling of the habeas court which precluded a merits

determination”). Next, the court concluded that Mr. Brooks failed to establish the

extraordinary circumstances necessary to grant relief under Rule 60(b). Indeed, the

                                            4
court explained, Mr. Brooks’s argument is premised on a mischaracterization of the

court’s basis for dismissing his § 2254 petition. Thus, the court denied Mr. Brooks’s

motion. Mr. Brooks then filed a timely motion to reconsider, which the district court

denied in May 2017. Mr. Brooks now appeals.

                                    II.    ANALYSIS

       Our review of the district court’s denial of Mr. Brooks’s Rule 60(b) motion

depends on whether the motion should be treated as a second or successive habeas

petition, as a “true” Rule 60(b) motion, or as a “mixed” motion. Spitznas v. Boone,

464 F.3d 1213, 1224–25 (10th Cir. 2006). A motion is treated as 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.” Id. at 1215. It is a “true” Rule

60(b) motion if it challenges either “a procedural ruling of the habeas court which

precluded a merits determination of the habeas application,” or “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

petition.” Id. at 1215–16. And a motion is “mixed” if it contains “both true Rule

60(b) allegations and second or successive habeas claims.” Id. at 1217.

       If we conclude the district court correctly treated the motion as a “true” Rule

60(b) motion and denied it, then the movant must obtain a COA before proceeding

with his appeal. Id. at 1217–18. But if we decide the district court “incorrectly treated

a second or successive petition as a true Rule 60(b) motion and denied it on the

merits, we will vacate the district court’s order for lack of jurisdiction and construe

                                             5
the petitioner’s appeal as an application to file a second or successive petition.” Id. at

1219.

        In his motion, Mr. Brooks argued the district court erred in concluding that his

claim is procedurally barred. This is a “true” Rule 60(b) motion. See id. at 1216 (“[A]

motion asserting that the federal district court incorrectly dismissed a petition for

failure to exhaust, procedural bar, or because of the statute of limitations constitutes a

true 60(b) motion.”). So Mr. Brooks must obtain a COA to proceed with his appeal of

the denial of his motion.

        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). To meet this standard,

the applicant must demonstrate that “reasonable jurists could debate whether (or, for

that matter, agree that) the petition”—here, Mr. Brooks’s 60(b) motion—“should

have been resolved in a different manner or that the issues presented were adequate

to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003) (internal quotation marks omitted).

        Mr. Brooks moved for relief under Rule 60(b)(6), which allows a party to seek

relief from a final judgment for “any other reason that justifies relief.” Fed. R. Civ. P.

60(b)(6). A movant seeking relief under this provision must “show ‘extraordinary

circumstances’ justifying the reopening of a final judgment.” Gonzalez v. Crosby,

545 U.S. 524, 535 (2005) (quoting Ackermann v. United States, 340 U.S. 193, 199

(1950)). A movant must show that “circumstances are so unusual or compelling that

extraordinary relief is warranted, or [that] it offends justice to deny such relief.”

                                            6
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir. 1996) (internal

quotation marks omitted). “Such circumstances will rarely occur in the habeas

context.” Gonzalez, 545 U.S. at 535. “This very strict interpretation of Rule 60(b) is

essential if the finality of judgments is to be preserved.” Id. (quoting Liljeberg v.

Health Servs. Acquisition Corp., 486 U.S. 847, 873 (1988) (Rehnquist, C.J.,

dissenting)).

      Here, reasonable jurists could not debate that Mr. Brooks fails to establish the

existence of extraordinary circumstances justifying relief. In his Rule 60(b) motion,

Mr. Brooks challenged the district court’s July 2016 ruling that his § 2254 motion is

procedurally barred. He premised his challenge on his assertion that the district court

ignored the rule that “a determination of a factual issue made by a State court shall be

presumed to be correct.” 28 U.S.C. § 2254(e)(1). In support, he pointed to one line in

the district court’s order that he claimed shows the district court refused to defer to

the state court’s “factual determination” that his August 2015 Rule 35(c) motion was

untimely and procedurally barred.

      But as the district court observed, Mr. Brooks misreads and mischaracterizes

the district court’s order. In its order, the district court concluded that Mr. Brooks

failed to exhaust an available state remedy by failing to appeal the state trial court’s

January 2016 order denying his August 2015 motion under Rule 35(c). Mr. Brooks

maintained that the district court could not dismiss his petition for failure to exhaust

“because the state court relied on independent and adequate state procedural grounds,

a state statute of limitations and a bar on successive motions, to deny the Rule 35(c)

                                            7
motion.” Brooks II, 2016 WL 8914532, at *3. But the district court concluded that it

“is not persuaded that the state court’s determination that the Rule 35(c) motion Mr.

Brooks filed in August 2015 was both untimely and procedurally barred excuses his

failure to appeal to the Colorado Court of Appeals and fairly present his newly-

arising federal constitutional claim to the state appellate courts.” Id. Even though Mr.

Brooks, as a pro se litigant, understandably misunderstands the quoted language, the

district court did not decline to presume that the state court’s factual determinations

are correct. See § 2254(e)(1). Instead, the district court held the state court’s ruling

that Mr. Brooks’s motion was untimely and procedurally barred did not excuse his

failure to exhaust his state remedies. Because Mr. Brooks premised his Rule 60(b)

motion on this misunderstanding, the district court denied relief. We conclude that no

reasonable jurist could find fault with the district court’s denial of Mr. Brooks’s Rule

60(b) motion because it was based on a faulty premise and otherwise failed to show

the existence of exceptional circumstances justifying relief.2




       2
        Mr. Brooks also argued in his Rule 60(b) motion, and again in his request for
a COA now before us, that we misconstrued the facts in our March 2017 order
denying his request for a COA to appeal the district court’s denial of his 28 U.S.C.
§ 2254 petition. Recall that the district court denied his petition as unexhausted
because he failed to appeal the state trial court’s January 2016 order. But, according
to Mr. Brooks, we misconstrued that ruling, and instead concluded that he failed to
exhaust his state remedies by filing his petition before the Colorado Court of Appeals
had decided his appeal of the trial court’s April 2016 order. Mr. Brooks raised this
argument in his Petition for Rehearing with Suggestion of Rehearing En Banc after
the panel issued its March 2017 order. The panel considered and rejected this
argument. See Brooks v. Archuleta, No. 16-1344, Order at 1 (10th Cir. Apr. 5, 2017).
We decline to reconsider it now.
                                            8
      As a final matter, Mr. Brooks also filed a motion to proceed in forma pauperis.

To proceed in forma pauperis, Mr. Brooks must demonstrate “a financial inability to

pay the required filing fees and the existence of a reasoned, nonfrivolous argument

on the law and facts in support of the issues raised on appeal.” Watkins v. Leyba, 543

F.3d 624, 627 (10th Cir. 2008) (internal quotation marks omitted). Even if we were to

find that Mr. Brooks has a demonstrated inability to pay the required fees, he has not

presented a nonfrivolous argument in support of the issues raised on appeal. We deny

Mr. Brooks’s motion to proceed in forma pauperis.

                               III.   CONCLUSION

      We DENY Mr. Brooks’s request for a COA and dismiss this matter. We also

DENY his request to proceed in forma pauperis.

                                              ENTERED FOR THE COURT


                                              Carolyn B. McHugh
                                              Circuit Judge




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