                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 28, 2009
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT


 JUAN SEGURA,

          Plaintiff - Appellant,
                                                         No. 09-5100
 v.
                                             (D.C. No. 4:02-CV-0243-HDC-PJC)
                                                        (N.D. Okla.)
 RANDALL WORKMAN, Warden,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Juan Segura, a state prisoner appearing pro se, appeals the district court’s

refusal to grant relief under Federal Rule of Civil Procedure 60(b). We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM the district court’s denial

of the Rule 60(b) motion.




      *
          This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
                                  BACKGROUND

      In 1999, Mr. Segura was convicted in Oklahoma state court of first-degree

murder and sentenced to life in prison without the possibility of parole. In 2002,

he filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United

States District Court for the Northern District of Oklahoma. After a series of fee-

related delays, the district court denied the petition on July 14, 2008. Three

months later, on October 15, 2008, Mr. Segura wrote to the district court

requesting an order that would secure him access to the prison law library to

enable him to respond to the denial of the habeas petition. Construing this as a

petition for additional time to file a response, the district court denied his request

as untimely on October 17, 2008.

      More than seven months later, on May 27, 2009, Mr. Segura filed with the

district court a “Motion for Reconsideration to Rehear Case.” Because it was

filed too late to be a motion to alter or amend the October 17 order under Federal

Rule of Civil Procedure 59(e), and because Mr. Segura did not reassert

substantive habeas claims, see Gonzalez v. Crosby, 545 U.S. 524, 533–36 (2005),

the district court construed the motion as a “true” Rule 60(b) motion for relief

from the October 17 order. Finding that Mr. Segura did not meet any of the

requirements of Rule 60(b), the district court denied relief in an order dated June

1, 2009.




                                          -2-
      On July 1, 2009, Mr. Segura refiled his “Motion for Reconsideration to

Rehear Case” with this Court, but we construed it as a Notice of Appeal and sent

it to the district court as directed by Rule 4(d) of the Federal Rules of Appellate

Procedure. On July 9, 2009, the district court denied Mr. Segura a certificate of

appealability (COA) from the June 1, 2009, order. 1 On July 30, 2009, the district

court granted Mr. Segura’s motion to proceed on appeal in forma pauperis. Mr.

Segura then filed a motion in this Court. We construe Mr. Segura’s motion as

appealing from the district court’s order denying his Rule 60(b) motion, and we

affirm.


      1
              Because of the unique procedural posture of this case, it seems to
have been error for the district court to reach the COA issue. A COA is a
jurisdictional prerequisite to an appeal from the denial of a § 2254 motion. 28
U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We
have held that, where a habeas petitioner subsequently brings a “true” Rule 60(b)
motion challenging the resolution of a habeas petition, “we will require the
movant to obtain a certificate of appealability . . . before proceeding with his or
her appeal.” Spitznas v. Boone, 464 F.3d 1213, 1217–18 (10th Cir. 2006). In
such a case, we may not issue a COA unless “the prisoner shows, 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) (emphasis added); see Coppage v. McKune,
534 F.3d 1279, 1281 (10th Cir. 2008) (“If the application was denied on
procedural grounds, the applicant faces a double hurdle.”).

             In this case, however, the district court found that Mr. Segura’s May
27, 2009, Rule 60(b) motion challenged not the July 14, 2008, habeas ruling but
the October 17, 2008, order denying him additional time to respond. Mr.
Segura’s pleadings thus do not complain of a “denial of a constitutional right,” so
there is no need to address the issue of a COA. We treat the current filing as a
direct appeal of the district court’s Rule 60(b) order.

                                          -3-
                                   DISCUSSION

      Federal Rule of Civil Procedure 60(b) provides:

             Grounds for Relief from a Final Judgment, Order, or
             Proceeding. On motion and just terms, the court may relieve a
             party or its legal representative from a final judgment, order, or
             proceeding for the following reasons:
                   (1)     mistake, inadvertence, surprise, or excusable
                           neglect;
                   (2)     newly discovered evidence that, with reasonable
                           diligence, could not have been discovered in time to
                           move for a new trial under Rule 59(b);
                   (3)     fraud (whether previously called intrinsic or
                           extrinsic), misrepresentation, or misconduct by an
                           opposing party;
                   (4)     the judgment is void;
                   (5)     the judgment has been satisfied, released or
                           discharged; it is based on an earlier judgment that
                           has been reversed or vacated; or applying it
                           prospectively is no longer equitable; or
                   (6)     any other reason that justifies relief.

      Relief under Rule 60(b) “is extraordinary and may only be granted in

exceptional circumstances.” Beugler v. Burlington N. & Santa Fe Ry. Co., 490

F.3d 1224, 1229 (10th Cir. 2007) (internal quotation marks omitted). “An appeal

of a district court’s denial of a motion to reconsider raises for review only the

district court’s order of denial and not the underlying judgment itself.” Elsken v.

Network Multi-Family Sec. Corp., 49 F.3d 1470, 1476 (10th Cir. 1995) (internal

quotation marks omitted). “We review the denial of Rule 60(b) relief for an

abuse of discretion.” Manning v. Astrue, 510 F.3d 1246, 1249 (10th Cir. 2007),

cert. denied, 129 S. Ct. 486, 487 (2008).


                                         -4-
      The district court found that Mr. Segura had not demonstrated excusable

neglect for his dilatoriness in seeking reconsideration of the October 17 order.

See Fed. R. Civ. P. 60(b)(1). The determination of whether a party’s neglect is

excusable “is at bottom an equitable one, taking account of all relevant

circumstances surrounding the party’s omission.” Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). These circumstances

include “the danger of prejudice to the [opposing party], the length of the delay

and its potential impact on judicial proceedings, the reason for the delay,

including whether it was within the reasonable control of the movant, and whether

the movant acted in good faith.” Id. “‘[F]ault in the delay remains a very

important factor—perhaps the most important single factor—in determining

whether neglect is excusable.’” United States v. Torres, 372 F.3d 1159, 1163

(10th Cir. 2004) (quoting City of Chanute v. Williams Natural Gas Co., 31 F.3d

1041, 1046 (10th Cir. 1994)). “An additional consideration is whether the

moving party’s underlying claim is meritorious.” Jennings v. Rivers, 394 F.3d

850, 857 (10th Cir. 2005). Taking into account this substantive, merits-based

consideration is a safeguard against frivolous litigation. See id. (citing Cessna

Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444–45

(10th Cir. 1983)). Likewise, “[a] court may take into account whether the mistake

was a single unintentional incident (as opposed to a pattern of deliberate

dilatoriness and delay).” Id.

                                         -5-
      Mr. Segura alleged before the district court that his inability to access the

prison law library prevented him from responding in a timely manner to either the

district court’s July 14, 2008, order denying habeas relief, or to the October 17,

2008, order denying his request for additional time to respond. Specifically, as to

the October 17 order, Mr. Segura mentioned a prison “race war” and his

placement in “segregation review” as the reasons why he was unable to access

legal materials. R., Vol. I, at 202–03 (Mot. for Recons. to Rehear Case, filed

May 27, 2009). Noting that Mr. Segura nonetheless acknowledged receiving the

October 17 order on October 26, the district court found insufficient reason for

Mr. Segura’s delay in the ensuing seven-month period. “Although Petitioner’s

placement in segregation may have resulted in limited access to his facility’s law

library, it does not constitute ‘excusable neglect’ for his failure to take prompt

action upon receipt of the Court’s Order.” R., Vol. I, at 206 (Dist. Ct. Order,

filed June 1, 2009).

      After reviewing the record, we are convinced that the district court did not

abuse its discretion in finding that Mr. Segura’s seven-month delay was not

attributable to “excusable neglect” under Rule 60(b)(1). Likewise, none of the

other sections of Rule 60(b) offer the prospect of relief for Mr. Segura.

                                  CONCLUSION

      Mr. Segura has not established that the district court abused its discretion

in rejecting his claim of “excusable neglect,” and we therefore AFFIRM the

                                         -6-
district court’s judgment denying his Rule 60(b) motion. Mr. Segura’s habeas

case remains closed.



                                     Entered for the Court


                                     JEROME A. HOLMES
                                     Circuit Judge




                                       -7-
