                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 6, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 VICTOR LOPEZ,

              Petitioner - Appellant,                    No. 12-1286
       v.                                                D. Colorado
 TRAVIS TRANI, Warden; THE                     (D.C. No. 1:09-CV-01551-LTB)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.




      In 2000, Colorado state prisoner Victor Albert Lopez was convicted of

multiple offenses, including first degree sexual assault. See Lopez v. Trani, 628

F.3d 1228, 1229 (10th Cir. 2010). Lopez raised numerous challenges to his

convictions in both state and federal court. Id. In 2010, he filed a 28 U.S.C.

§ 2254 habeas petition which the United States District Court for the District of

Colorado dismissed as untimely. Although Lopez argued he was entitled to

equitable tolling because he is actually innocent, the district court concluded

dismissal was proper because he did not diligently pursue this basis for tolling.

See Lopez v. Trani, No. 09-cv-01551, 2010 WL 454804, at *6 (D. Colo. Feb. 9,
2010) (unpublished order of dismissal). Lopez sought a certificate of

appealability from this court. We held the district court erred by requiring Lopez

to show he diligently pursued his claim of actual innocence. Lopez, 628 F.3d at

1230-31 (“Where . . . a petitioner argues that he is entitled to equitable tolling

because he is actually innocent, this argument is premised on the same

fundamental miscarriage exception that was discussed by the Supreme Court in

[Schlup v. Delo, 513 U.S. 298 (1995)] and [Coleman v. Thompson, 501 U.S. 722

(1991)], and as such the petitioner need make no showing of cause for the

delay.”). Despite this resolution of Lopez’s equitable tolling argument this court

refused to grant him a certificate of appealability, concluding his § 2254 petition

did not state a valid constitutional claim for relief. Id. at 1231-32.

      Lopez then filed a Fed. R. Civ. P. 60(b) motion with the United States

District Court for the District of Colorado, seeking consideration of the merits of

the claims raised in his previously dismissed § 2254 petition in light of this

court’s ruling on the equitable tolling issue. The district court denied the motion,

correctly noting this court also concluded none of the claims Lopez raised in his

§ 2254 petition “state a valid ground for habeas relief.”

      Lopez now seeks a certificate of appealability (“COA”) to challenge the

district court’s denial of his Rule 60(b) motion. See Spitznas v. Boone, 464 F.3d

1213, 1217-18 (10th Cir. 2006) (holding a COA is required to appeal the denial of

Rule 60(b) relief from a habeas judgment). To be entitled to a COA, Lopez must

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

§ 2253(c)(2). To make the requisite showing, he must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition 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) (quotations omitted). In evaluating whether

Lopez has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Id. at 338; see also LaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir.

2003) (reviewing the denial of a Rule 60(b)(6) motion for abuse of discretion).

Although Lopez need not demonstrate his appeal will succeed to be entitled to a

COA, he must “prove something more than the absence of frivolity or the

existence of mere good faith.” Miller-El, 537 U.S. at 336 (quotations omitted).

      This court has reviewed Lopez’s appellate brief and application for COA,

the district court’s order dated July 11, 2012, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El and




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concludes Lopez is not entitled to a COA. Accordingly, we deny his request for a

COA and dismiss this appeal. Lopez’s motion to proceed in forma pauperis on

appeal is granted.

                                         ENTERED FOR THE COURT


                                         Michael R. Murphy
                                         Circuit Judge




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