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

                                   TENTH CIRCUIT                             November 27, 2018

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
  KENNETH DAVID McNELLY,

                Petitioner - Appellant,

  v.                                                          No. 18-3197
                                                     (D.C. No. 5:17-CV-03141-SAC)
  SAM CLINE,                                                   (D. Kansas)

                Respondent - Appellee.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before HARTZ, McHUGH, and CARSON, Circuit Judges.



       Kenneth D. McNelly, proceeding pro se,1 seeks a certificate of appealability

(“COA”) to appeal the district court’s denial of his Rule 60(b) motion. We deny a COA

and dismiss his appeal.

                                          BACKGROUND

       Mr. McNelly was convicted of eight counts of rape, one count of aggravated

criminal sodomy, and one count of aggravated liberties with a child. “After exhausting


       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
       1
         Because Mr. McNelly is pro se, “we liberally construe his filings, but we will not
act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
state remedies, he filed a habeas petition in district court” but conceded that it was

untimely. ROA at 80. Nevertheless, Mr. McNelly argued that his petition was not time

barred because he was “entitled to equitable tolling” and was actually innocent. Id. at 80–

81. The district court rejected these arguments and denied Mr. McNelly a COA.

Mr. McNelly then appealed, and we likewise denied a COA. McNelly v. Cline, 715 F.

App’x 858 (10th Cir. 2018) (unpublished).

       Mr. McNelly then filed a Rule 60(b) motion “as a result of a mistake made by [the

district] court” and because the “circumstances in this case are so unusual yet compelling

that extraordinary relief is warranted.” ROA at 84–85 (citing Fed. R. of Civ. P. 60(b)(1),

(6)). Mr. McNelly claimed that his petition was not time barred because the district court

failed to understand that the exclusion of evidence that formed the basis of his conviction

rendered him actually innocent of the crimes charged. The district court denied

Mr. McNelly’s motion because “Rule 60(b) may not be used to rehash issues that [have

already been] addressed.” Id. at 94 (citing Van Skiver v. United States, 952 F.2d 1241,

1244 (10th Cir. 1991)). Mr. McNelly had previously raised his actual innocence

argument and the court had considered it, but Mr. McNelly did not present any “new,

compelling ground that entitle[d] him to relief.” Id. at 95. Mr. McNelly then filed a

motion for reconsideration, a Rule 59 motion, a motion to appoint appellate counsel, and

a COA application. The district court denied each motion. This appeal followed.

                                            ANALYSIS

       In the post-conviction setting, Rule 60(b) motions are construed in one of two

ways. If the 60(b) motion “in substance or effect asserts or reasserts a federal basis for

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relief from the petitioner’s underlying conviction,” we construe it as “a second or

successive petition,” subject to the stringent requirements of 28 U.S.C. § 2244(b).

Spitznas v. Boone, 464 F.3d 1213, 1215, 1217 (10th Cir. 2006). But, if the Rule 60(b)

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

determination of the habeas application,” we consider it a “‘true’ 60(b) motion.” Id. at

1215–16 (quoting Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)). Because Mr. McNelly

challenges the determination that his petition was untimely, his is a true Rule 60(b)

motion and we must “rule on it as [we] would any other Rule 60(b) motion.” Id. at 1217.

       Before reaching the merits of Mr. McNelly’s Rule 60(b) motion, we must first

address the threshold question of our own jurisdiction. Because the district court denied a

COA, we lack jurisdiction to consider the merits of Mr. McNelly’s appeal unless we issue

a COA of our own. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322,

327 (2003); see also Spitznas, 464 F.3d at 1224 (discussing the grant of a COA to appeal

an adverse ruling on a “true” Rule 60(b) motion). When, as here, “the district court denies

a habeas petition on procedural grounds,” the petitioner may obtain a COA by

“show[ing], at least, 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). Mr. McNelly cannot make either showing.

       As the district court noted, “Rule 60(b) may not be used to rehash issues that were

addressed . . . earlier.” ROA at 94. When a petitioner’s “motion reiterate[s] the original

issues raised in [her petition] and s[eeks only] to challenge the legal correctness of the

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district court’s judgment by arguing that the district court misapplied the law or

misunderstood [her] position,” the motion must be denied. See Van Skiver, 952 F.2d at

1244. This is precisely what Mr. McNelly attempts to do. He does not raise any new

arguments that justify granting him relief from the district court’s final judgment, nor

does he present any new grounds to reconsider his old argument. He claims only that the

district court “used the wrong analys[is] of the harmless error standard” and “failed to

consider” the full implications of his arguments. See ROA at 87–89, 96. As such, his

Rule 60(b) was rightly denied. See Van Skiver, 952 F.2d at 1243 (explaining that

“revisiting the issues already addressed” is not an appropriate use of a Rule 60(b) motion

and is sufficient “basis alone . . . [to] affirm”). No reasonable jurist could find it debatable

that the district court was correct in its procedural ruling. See Slack, 529 U.S. at 484.

       As to Mr. McNelly’s underlying constitutional claim, we have previously

determined that no reasonable jurist could find it even debatably valid because any error

“was harmless.” See McNelly, 715 F. App’x at 860 (quoting United States v. McCullah,

76 F.3d 1087, 1101 (10th Cir. 1996)). Nothing in Mr. McNelly’s Rule 60(b) motion

warrants reassessing that determination. Mr. McNelly, therefore, cannot show that a

reasonable jurist could debate either the merits of his underlying constitutional claim or

the district court’s procedural ruling. See Slack, 529 U.S. at 484. Thus, his COA

application must be denied.




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                                     CONCLUSION

      For the reasons stated, we deny Mr. McNelly’s COA application and dismiss his

appeal.

                                          Entered for the Court


                                          Carolyn B. McHugh
                                          Circuit Judge




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