                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    January 16, 2009
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 08-3279
 v.                                           (D.C. No.2:07-CV-02432-JWL and
                                                   2:04-CR-20048-JWL-1)
 BARRY D. NELSON,                                         (D. Kan.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


      Barry Nelson, a federal inmate appearing pro se, seeks to appeal from the

district court’s denial of his motion for reconsideration of the denial of his 28

U.S.C. § 2255 motion. 1 R. Doc. 126 (notice of appeal). Because we conclude

that Mr. Nelson has failed to show that the district court’s ruling on the motion

for reconsideration (concerning his procedural claim) is reasonably debatable, we

will deny a certificate of appealability and dismiss that portion of the appeal. 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Spitznas v.

Boone, 464 F.3d 1213, 1217-18 (10th Cir. 2007). We will affirm the district

court’s order insofar as it dismissed Mr. Nelson’s substantive claims contained in

the motion for reconsideration for lack of jurisdiction. See United States v.
Pedraza, 466 F.3d 932, 934 (10th Cir. 2006).

      After a jury trial, Mr. Nelson was convicted of distribution of a mixture and

substance containing cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (counts 1

and 3); maintaining a residence for distribution of cocaine base, 21 U.S.C. §

856(a)(1) (count 2); possession with intent to distribute 5 grams or more of a

mixture or substance containing cocaine base, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)

(count 4); use of a firearm during and in relation to a drug trafficking crime, 18

U.S.C. § 924(c) (count 5); and possession of a firearm by a felon, 18 U.S.C. §§

922(g)(1) & 924(a)(2). 1 R. Doc. 73 at 2. He was sentenced to a term of 200

months; 140 months on counts 1, 2, 3, and 4; 120 months on count 6, all to run

concurrently, with five years on count 5, to run consecutively, and eight years’

supervised release. 1 R. Doc. 73 at 3-4. The aggregate term of imprisonment was

later reduced to 120 months with 60 months consecutive. Docs. 114, 116. The

judgment was affirmed on direct appeal. United States v. Nelson, 450 F.3d 1201

(10th Cir. 2006). Mr. Nelson sought certiorari which was denied. Nelson v.

United States, 549 U.S. 937 (2006) (table). On September 10, 2007, Mr. Nelson

filed his § 2255 motion claiming ineffective assistance of counsel. The district

court denied the § 2255 motion. United States v. Nelson, Nos. 07-2432-JWL,

04-20048-01-JWL, 2007 WL 4241836 (D. Kan. Nov. 28, 2007).

      Apparently, Mr. Nelson did not receive a copy of the order denying the

§ 2255 motion until he inquired in May 2008. Prior to that time, on March 31,

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2008, Mr. Nelson had filed a supplement to his § 2255 motion. On June 13, 2008,

Mr. Nelson filed a motion for reconsideration of the denial of his § 2255 motion.

The district court denied the motion for reconsideration insofar as it contained

procedural claims and dismissed any new claims contained therein. It declined to

transfer the new claims to the circuit as second or successive claims. United

States v. Nelson, Nos. 04-20048-01-JWL, 07-2432-JWL, 2008 WL 4216118 (D.

Kan. Sept. 12, 2008).

      On appeal, Mr. Nelson argues that the district court erred in not considering

all the issues contained in his supplemental filing, as urged by his motion for

reconsideration. Fed. R. Civ. P. 60(b) is available to challenge “some defect in

the integrity of the federal habeas proceedings,” but not the merits of the district

court’s order denying the § 2255 motion. Gonzalez v. Crosby, 545 U.S. 524, 532

(2005); see also Spitznas, 464 F.3d at 1215-16. Mr. Nelson argued in his motion

for reconsideration that the district court’s denial of his § 2255 motion was void

because the district court did not consider his supplemental filing. The

supplemental filing contained new substantive claims concerning the validity of

the arrest warrant and the indictment, and reargued ineffective assistance of

counsel.

      Even granting that Mr. Nelson did not receive the district court’s order on

his § 2255 motion until many months after the order had been entered, the district

court did not abuse its discretion in denying Mr. Nelson’s motion for

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reconsideration. 1 First, Mr. Nelson’s conviction became final on October 2, 2006

with the denial of certiorari. The one-year limitation period would have expired

on October 2, 2007. See 28 U.S.C. § 2255(f)(1). Thus, any new substantive

claims contained in the March 31, 2008, supplemental filing would have been

time-barred along with those raised in the motion for reconsideration. The

government did raise the one-year limitation problem. 2 1 R. Doc. 122 at 3.

Second, to the extent that the supplemental filing and motion for reconsideration

reargued ineffective assistance claims, those claims are completely without merit.

For example, Mr. Nelson was properly prosecuted on an indictment, Fed. R. Crim.

P. 7(a)(1)(B), and a judge is not required to sign either the indictment or arrest

warrant. Fed. R. Crim. P. 9(b)(1) (clerk signs arrest warrant). Finally, we agree

with the district court that it was not in the interest of justice to transfer any new

(or any for that matter) substantive claims to the court of appeals when it is

apparent that such claims cannot meet the requirements of § 2255(h)(1) or (2).



      1
         We would reach the same result even if Mr. Nelson’s motion were
considered under Fed. R. Civ. P. 59(e). See Pedraza, 466 F.3d at 933 (holding
that Rule 59(e) motions are subject to the same limitations concerning second and
successive motions as those arising under Rule 60(b)). By the time the district
court denied Mr. Nelson’s § 2255 motion on November 28, 2007, the one-year
limitation period of § 2255(f)(1) had passed. A district court’s decision on either
a Rule 59(e) or Rule 60(b) is reviewed for an abuse of discretion. Butler v.
Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2008).
      2
         The government apparently overlooked Clay v. United States, 537 U.S.
522, 527 (2003), and also argued that the one-year limitation period began with
the issuance of our mandate, rather than the denial of certiorari.

                                          -4-
See In re Cline, 531 F.3d 1249, 1253 (10th Cir. 2008).

      We DENY a COA and dismiss the appeal as to the procedural component

of the Rule 60(b) motion; we affirm the district court’s dismissal of the remaining

substantive claims for lack of jurisdiction.




                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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