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

                            FOR THE TENTH CIRCUIT                               August 7, 2018
                        _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 18-3026
                                                    (D.C. Nos. 2:18-CV-02020-KHV &
 JUAN MATA-SOTO,                                         2:08-CR-20160-KHV-1)
                                                                 (D. Kan.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

       Juan Mata-Soto, a federal prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the district court’s decision construing his Fed. R. Civ. P.

60(b) motion as an unauthorized second or successive 28 U.S.C. § 2255 motion and

dismissing it for lack of jurisdiction. We deny a COA and dismiss this matter.

       Mr. Mata-Soto pled guilty to one count of conspiracy to distribute and possess

with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(viii) and 846. He was sentenced to life in prison. He did not file

a direct appeal.



       *
         This order is not binding precedent except under the doctrines of law of the case,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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Mr. Mata-Soto subsequently filed a pro se § 2255 motion. The district court

concluded that his claims were barred by the waiver of collateral challenges in his plea

agreement and that they lacked substantive merit. Mr. Mata-Soto sought a COA from

this court, but his appeal was dismissed for failure to prosecute when he failed to pay the

filing fee.

       Mr. Mata-Soto later sought to challenge his conviction and sentence through a writ

of audita querela. The district court rejected his attempt to do so and this court dismissed

Mr. Mata-Soto’s appeal from that decision based on the appellate waiver in his plea

agreement. He next sought authorization to file a second or successive § 2255 motion,

but this court denied his request because he failed to meet the standard for authorization

in § 2255(h).

       Mr. Mata-Soto then filed the underlying Rule 60(b) motion, which sought relief

from the district court’s judgments in his § 2255 and audita querela proceedings. The

district court construed the Rule 60(b) motion as an unauthorized second or successive

§ 2255 motion and dismissed it for lack of jurisdiction. He now seeks a COA to appeal

from that decision.

       To obtain a COA from the district court’s procedural ruling, Mr. Mata-Soto must

show “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).



                                              2
       A prisoner may not file a second or successive § 2255 motion unless he first

obtains an order from the circuit court authorizing the district court to consider the

motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district

court lacks jurisdiction to address the merits of a second or successive § 2255 motion.

In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

       A Rule 60(b) motion should be treated as a second or successive § 2255 motion “if

it in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s

underlying conviction.” Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). A

Rule 60(b) motion may not be treated as a successive § 2255 motion if it “challenges a

defect in the integrity of the federal habeas proceeding.” Id. at 1216.

       In his COA application, Mr. Mata-Soto fails to explain how the district court erred

in treating his Rule 60(b) motion as a second or successive § 2255 motion. Instead, he

argues the merits of the claims he raised in his Rule 60(b) motion—that he was denied

due process when the district court participated in the plea negotiations and he was

denied his Sixth Amendment right to effective assistance of counsel during the plea

negotiations, sentencing, and direct appeal. As the district court correctly concluded,

these claims assert or reassert a federal basis for relief from Mr. Mata-Soto’s conviction

and do not challenge a defect in the integrity of his § 2255 proceeding. Given these

circumstances, reasonable jurists would not debate the district court’s decision to

construe the Rule 60(b) motion as an unauthorized second or successive § 2255 motion

and to dismiss it for lack of jurisdiction.



                                               3
       Accordingly, we deny a COA and dismiss this matter. We also deny

Mr. Mata-Soto’s request to take judicial notice of a letter regarding Robin S. Martin that

was allegedly sent to him from the State Bar of California. Although “[j]udicial notice

may be taken at any time, including on appeal,” United States v. Burch, 169 F.3d 666,

671 (10th Cir. 1999), Mr. Mata-Soto’s request is not an appropriate one for judicial

notice, see id. (“A fact may be judicially noticed if it is not subject to reasonable dispute

because it is either ‘(1) generally known within the territorial jurisdiction of the trial court

or (2) capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.’” (quoting Fed. R. Evid. 201(b)). And we deny as moot

Mr. Mata-Soto’s request for a stay of these proceedings.1 We grant his motion for leave

to proceed without prepayment of costs or fees.


                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




       1
         Mr. Mata-Soto sought to stay these proceedings until the Supreme Court decides
Garza v. State of Idaho, No. 17-1026, 2018 WL 534810 (U.S. June 18, 2018) (granting
petition for writ of certiorari). The question presented for review in that case is: “Does
the ‘presumption of prejudice’ recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000),
apply where a criminal defendant instructs his trial counsel to file a notice of appeal but
trial counsel decides not to do so because the defendant’s plea agreement included an
appeal waiver?” Garza v. State of Idaho, No. 17-1026, 2018 WL 557828 (U.S. Jan. 23,
2018) (petition for a writ of certiorari). The resolution of that question has no bearing on
the issue here—whether the district court properly construed Mr. Mata-Soto’s Rule 60(b)
motion as a second or successive § 2255 motion.
                                               4
