                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 16, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                          FOR THE TENTH CIRCUIT


 WILLIAM SEAN CONEY,

              Petitioner–Appellant,

 v.                                                      No. 10-1492
                                               (D.C. No. 1:07-CV-01407-WYD)
 ARISTEDES ZAVARAS,                                       (D. Colo.)
 Executive Director; COLORADO
 DEPARTMENT OF CORRECTIONS;
 THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,

              Respondents–Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



      William Sean Coney, a Colorado prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s dismissal of his

Fed. R. Civ. P. 60(b) motion for lack of jurisdiction. Because no reasonable jurist

could debate that Coney’s claim has merit, we deny a COA and dismiss this

matter.

                                          I

      The Colorado state courts sentenced Coney to life in prison plus thirty

years without the possibility of parole upon his conviction of first-degree murder,
kidnapping, intimidation of a witness, and other related crimes. In federal

proceedings, the district court dismissed Coney’s habeas corpus application under

28 U.S.C. § 2254 and this court denied a COA. Coney v. Zavaras, 368 F. App’x

914, 915 (10th Cir. 2010) (unpublished).

      After his unsuccessful appeal attempt, Coney filed a Rule 60(b) motion

asking the district court to revisit its determination that three of his claims “were

presented to the state courts as state-law evidentiary claims and were therefore

unexhausted” and two other claims “were unexhausted based upon an express

state procedural bar (a failure to raise them on direct appeal).” Id. The district

court concluded that Coney’s motion was a second or successive habeas

application under 28 U.S.C. § 2244(b) because “in substance or effect [it]

assert[ed] or reassert[ed] a federal basis for relief from [his] underlying

conviction.” Noting that Coney had not received authorization to file a second or

successive application as required by § 2244(b)(3), the district court dismissed the

motion for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1251 (10th Cir.

2008) (per curiam) (“A district court does not have jurisdiction to address the

merits of a second or successive . . . § 2254 claim until this court has granted the

required authorization” to file it.).




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                                          II

      Coney now seeks a COA to challenge the district court’s disposition of his

Rule 60(b) motion. See generally Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2003) (“Before an appeal may be entertained, a prisoner who was denied habeas

relief in the district court must first seek and obtain a COA from a circuit justice

or judge.”). The district court’s ruling rests on procedural grounds, so Coney

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). In his application for a

COA, Coney argues that the district court erred in characterizing his filing as a

second or successive habeas application and that his underlying habeas claims had

sufficient merit to justify the issuance of a COA.

      On the procedural point, Coney presents a sound argument. A movant who

“merely asserts that a previous ruling which precluded a merits determination was

in error—for example, a denial for such reasons as failure to exhaust, procedural

default, or statute-of-limitations bar” is not stating or re-stating a habeas claim.

Gonzalez v. Crosby, 545 U.S. 524, 532, n.4 (2005); see also Spitznas v. Boone,

464 F.3d 1213, 1216 (10th Cir. 2006) (“[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.”)

                                          -3-
(citing Gonzales, 545 U.S. at 532, n.4). Thus, Coney’s Rule 60(b) attack on the

district court’s procedural bar ruling was not a second or successive habeas

application and therefore does not require authorization from this court.

      Coney, however, cannot demonstrate that the application of the procedural

bar to his constitutional claims was “debatable or wrong.” Slack, 529 U.S. at

484). This court has already considered his theories regarding the district court’s

ruling, denied COA, and dismissed his appeal. Coney, 368 F. App’x at 915. No

reasonable jurist could debate whether the issues presented in Coney’s motion

were “adequate to deserve encouragement to proceed further.” Slack, 529 U.S. at

484 (internal quotation marks omitted).

                                          III

       We DENY the application for a COA and DISMISS the appeal. Coney’s

motion to proceed in forma pauperis is GRANTED.


                                                Entered for the Court


                                                Carlos F. Lucero
                                                Circuit Judge




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