                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 9, 2009
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff–Appellee,
                                                        No. 08-2122
 v.                                          (D.C. No. 1:04-cv-01026-WJ-ACT)
                                                          (D.N.M.)
 MARVIN JOHN COBB,

              Defendant–Appellant.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY


Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges.


      Marvin John Cobb, a federal prisoner proceeding pro se, was denied habeas

corpus relief pursuant to 28 U.S.C. § 2255. He filed several motions challenging

that denial, but these motions too were denied. He then filed a Federal Rule of

Civil Procedure 59(e) motion to alter or amend the judgment, and he now appeals

the denial of this motion. 1 We conclude that Cobb must obtain a certificate of


      1
        Cobb has now been released from prison. Because he is serving a
sentence of supervised release, his challenges to his conviction and sentence are
not moot. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (a challenge to a
conviction is not moot while collateral consequences flow therefrom); United
States v. Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007) (a defendant serving
a term of supervised release “may challenge his sentence if his unexpired term of
                                                                      (continued...)
appealability (“COA”) to appeal this denial. Because we see no basis for granting

one, we deny Cobb’s appeal.

      Cobb filed a § 2255 petition for habeas relief on September 10, 2004. He

sought to challenge his conviction and sentence for marijuana possession, arguing

that his attorney was ineffective for failing to raise his post-traumatic stress

disorder at trial and at sentencing, and that his guilty plea was involuntary. After

a response from the government, the district court adopted the magistrate’s

proposed findings and recommended disposition, overruled Cobb’s objections,

and dismissed his petition on its merits on April 14, 2005. This court then denied

a COA. United States v. Cobb, 156 F. App’x 82 (10th Cir. 2005).

      Nearly two years later, Cobb began filing a spate of motions seeking to

revisit the merits of his petition. These included a motion for reconsideration

pursuant to Federal Rule of Civil Procedure 60(b)(1), two motions for summary

judgment, and a motion for a new trial or modification of sentence. The district

court denied all of these in a single order on October 16, 2007 (the “October 16

order”).




      1
       (...continued)
supervised release could be reduced or eliminated by a favorable appellate
ruling”). Liberally construing Cobb’s claims, Haines v. Kerner, 404 U.S. 519,
520-21 (1972), we agree that a holding that counsel was ineffective at Cobb’s
sentencing hearing could affect the term of supervised release imposed at
resentencing.

                                         -2-
      Cobb then filed a timely Federal Rule of Civil Procedure 59(e) motion to

alter or amend the October 16 order, arguing that the district court had neglected

to fully decide his motion for a new trial or modification of sentence. When the

court failed to rule on his Rule 59(e) motion for several months, he filed a motion

for a writ of mandamus in both the district court and this court on May 12, 2008.

The district court then denied his 59(e) motion in an order dated May 20, 2008

(the “May 20 order”). 2 Regarding Cobb’s request for a new trial, the court found

that the motion was not cognizable under Federal Rule of Criminal Procedure 33

because Cobb was never tried in the first place, but rather, pleaded guilty. See

United States v. Gordon, 4 F.3d 1567, 1572 n.3 (10th Cir. 1993). Regarding the

requested reduction of sentence, the court found that it lacked power to grant such

relief because none of the circumstances specified in 18 U.S.C. § 3582(c), which

lists all situations in which a district court may modify a sentence, applied. Cobb

now appeals from the May 20 order.

      Section 2253(c)(1)(B) of Title 28 of the United States Code requires

issuance of a COA before appeal may be taken from “the final order in a

proceeding under section 2255.” Because the purpose of the COA requirement

“is to prevent frivolous cases from clogging appellate dockets and to promote


      2
        Because the district court entered an order addressing Cobb’s 59(e)
motion, this court denied his motion for a writ of mandamus as moot. The district
court also denied Cobb’s motion for a writ of mandamus in that court,
determining that the motion was more properly filed before us.

                                        -3-
finality,” Dulworth v. Jones, 496 F.3d 1133, 1136 (10th Cir. 2007) (quotation

omitted), we have interpreted this provision broadly, requiring a COA as a

prerequisite to appeal from any final order in a habeas corpus proceeding, id. at

1135-36. In particular, we require a COA to appeal the denial of a Federal Rule

of Civil Procedure 60(b) motion to reconsider denial of a § 2255 motion, because

“it would be illogical that a COA would be required to appeal from a habeas

judgment, but not from the district court’s order denying Rule 60(b) relief from

such a judgment.” Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th Cir. 2006).

This reasoning applies equally to motions under Rule 59(e) challenging the denial

of a § 2255 motion. Like a Rule 60(b) motion, a Rule 59(e) motion asks the

district court to reconsider its judgment on the merits; the differences between the

two are primarily procedural. Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir.

1995) (explaining that, unlike a Rule 60(b) motion, a Rule 59(e) motion must be

filed within 10 days of the challenged order and tolls the time for filing a notice

of appeal from that order). Accordingly, Cobb may not appeal the district court’s

final order denying his Rule 59(e) motion unless we issue a COA.

      A COA may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” § 2253(c)(2). When the district

court denies a habeas petition on procedural grounds without reaching the

underlying constitutional claims, a petitioner is not entitled to a COA unless he

can show both that “jurists of reason would find it debatable whether the petition

                                         -4-
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 this case, no reasonable jurist could disagree with the district court’s

procedural ruling on Cobb’s motion for reconsideration. For the reasons stated by

that court in the May 20 order, neither Federal Rule of Criminal Procedure 33 nor

18 U.S.C. § 3582(c) could offer Cobb any relief from his conviction or sentence

at the time he filed his motion for new trial or reduction of sentence.

      We DENY a COA, DISMISS the appeal, and DENY Cobb’s motion to

proceed in forma pauperis on appeal.



                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




                                          -5-
