                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  September 3, 2015
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 15-3042
                                                        (D. Kansas)
v.
                                            (D.C. Nos. 2:14-CV-02390-JWL and
                                                  2:08-CR-20117-JWL-3)
KEVIN H. TATUM, JR.,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.



      Petitioner, Kevin H. Tatum, Jr., pleaded guilty to conspiracy to possess

cocaine with intent to distribute, possession of a firearm in furtherance of a drug

trafficking crime, and possession of a firearm by a prohibited person. He did not

appeal either of his convictions or the 211-month sentence he received on

September 23, 2009. On August 7, 2014, nearly five years after he was

sentenced, Tatum filed a motion to vacate, set aside, or correct sentence pursuant

to 28 U.S.C. § 2255. In the motion, he raised claims of actual innocence and

ineffective assistance of counsel.
      Respondent moved to dismiss the § 2255 motion as untimely, arguing it

was filed well outside the one-year statute of limitations. See 28 U.S.C.

§ 2255(f) . The district court granted Respondent’s motion, concluding Tatum

failed to avoid the one-year limitations period by making a showing of actual

innocence. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013) (holding

“actual innocence, if proved, serves as a gateway through which a petitioner may

pass whether the impediment is a procedural bar . . . or . . . expiration of the

statute of limitations”). Tatum then filed an untimely Rule 59(e) motion for

reconsideration, asserting the district court mistakenly failed to consider whether

the ineffective assistance of his counsel supported his claim of actual innocence.

See Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed

no later than 28 days after the entry of the judgment.”). The district court denied

the Rule 59(e) motion, concluding that, regardless of the reasons for his guilty

plea, there were multiple reasons why Tatum failed to satisfy all the requirements

of the actual innocence exception.

      Proceeding pro se, Tatum is before this court seeking a certificate of

appealability (“COA”) so he can appeal the dismissal of his § 2255 motion. The

notice of appeal Tatum filed on February 26, 2105, however, is untimely because

his Rule 59(e) motion did not toll the period for him to file his notice of appeal.

See Fed. R. App. P. 4(a)(4)(A)(iv) (extending the time to file a notice of appeal

only if a party files a timely Rule 59 motion). We retain jurisdiction, however, to

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consider whether Tatum is entitled to a COA permitting review of the district

court’s denial of his Rule 59(e) motion. 1 See United States v. Cobb, 307 F. App’x

143, 145 (10th Cir. 2009) (unpublished disposition) (concluding a COA is

required to appeal the denial of a Rule 59(e) motion in a § 2255 case).

      To receive a COA, Tatum must 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 Tatum 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. Although Tatum need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove



      1
        Because Tatum’s Rule 59(e) motion was filed more than twenty-eight days
after judgment was entered, the district court should have treated it as a Rule
60(b) motion. Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005). The
court’s error is immaterial, however, because Tatum is not entitled to a COA
under any standard. See Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1241-
42 (10th Cir. 2006) (discussing the applicable standard for relief under Rule
60(b)); see also Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005) (discussing the
differences between a Rule 60(b) motion and a second or successive habeas
petition). See also Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th Cir. 2006)
(holding a movant must obtain a COA to appeal the denial of a “true Rule 60(b)
motion”).

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something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Tatum’s application for a COA and

appellate filings, the district court’s orders, and the entire record on appeal

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes Tatum is not entitled to a COA. Because no reasonable jurist could

disagree with the district court’s ruling on Tatum’s motion for reconsideration,

the court’s resolution of that motion is not reasonably subject to debate and the

issues Tatum seeks to raise on appeal are not adequate to deserve further

proceedings. Accordingly, this court denies Tatum’s request for a COA and

dismisses this appeal.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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