                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  December 5, 2008
                                TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 RUSSELL WAYNE FARNER,

              Petitioner - Appellant,                     No. 08-7053
 v.                                                    (E.D. Oklahoma)
 RANDALL WORKMAN, Warden,                  (D.C. No. 6:03-CV-00143-RAW-KEW)

              Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Russell Farner’s application for a writ of habeas corpus under 28 U.S.C.

§ 2254 was denied by the United States District Court for the Eastern District of

Oklahoma on March 8, 2006. He did not appeal. On April 2, 2008, over two

years later, Mr. Farner moved the court under Federal Rule of Civil Procedure

60(b)(6) to vacate its judgment, reinstate his habeas application, and deny the

application so that he could file a timely appeal. In support of his motion,

Mr. Farner argued that he had always wanted to appeal, but that his attorney had

failed to notify him that his application had been denied until after the time for

filing an appeal had passed. The district court ruled that Mr. Farner’s motion was

a “true” Rule 60(b) motion, not a second or successive habeas application, but
denied the motion as untimely. Mr. Farner now seeks review in this court. We

deny a certificate of appealability (COA) and dismiss the appeal.

      The district court may relieve a party from a final judgment for “any . . .

reason that justifies relief,” Fed. R. Civ. P. 60(b)(6), if the party files for relief

“within a reasonable time,” id. 60(c). There has been some confusion regarding

when a postjudgment motion in a § 2254 proceeding is a “true” Rule 60(b) motion

or a successive § 2254 application. But the Supreme Court has provided

clarification. We now know that a “true” Rule 60(b) motion “(1) challenges only

a procedural ruling of the habeas court which precluded a merits determination of

the habeas application; or (2) challenges a defect in the integrity of the federal

habeas proceeding, provided that such a challenge does not itself lead inextricably

to a merits-based attack on the disposition of a prior habeas petition.” Spitznas v.

Boone, 464 F.3d 1213, 1216 (10th Cir. 2006) (citations omitted). Mr. Farner’s

Rule 60(b)(6) motion, which contended that he had been denied the ability to

appeal the denial of his application because his attorney had failed to notify him

of the denial, challenged the integrity of the federal habeas proceeding. He did

not assert in the motion a federal basis for the district court to vacate his

underlying conviction. See id. at 1215. Thus, we agree with the district court

that Mr. Farner’s motion was a “true” Rule 60(b) motion rather than a second or

successive habeas application.




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         Before we can review the denial of a Rule 60(b) motion in a § 2254 case, a

COA must issue. Id. at 1217–18. Although Mr. Farner has not filed a formal

request for a COA, we treat his notice of appeal as an application for a COA. See

United States v. Gordon, 172 F.3d 753, 753–54 (10th Cir. 1999); Fed. R. App.

P. 22(b)(2). Because the district court disposed of Mr. Farner’s motion on a

procedural ground, he cannot obtain a COA unless he makes two showings: “[1]

that jurists of reason would find it debatable whether [his § 2254 application]

states a valid claim of the denial of a constitutional right and [2] that jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling.” Spitznas, 464 F.3d at 1225 (internal quotation marks

omitted). Because he fails to make the second showing, we need not address the

first.

         Mr. Farner’s Rule 60(b)(6) motion, which requested the district court to

vacate and then reinstate its judgment, in essence requested the court to grant him

leave to file a late notice of appeal from the denial of his § 2254 application. But

Federal Rule of Appellate Procedure 4(a) governs the timeliness of a notice of

appeal. A notice of appeal in a § 2254 proceeding ordinarily must be filed within

30 days after entry of the order or judgment appealed from. Fed. R. App.

P. 4(a)(1)(A). Rule 4(a)(5) allows the district court, on a showing of excusable

neglect or good cause, to extend the time to file a notice of appeal if a party so

moves within 60 days after entry of the judgment or order appealed from. But

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after the 60 days have passed, Rule 4(a)(6) allows the district court to reopen the

time to file an appeal

      only if all the following conditions are satisfied:

            (A) the court finds that the moving party did not receive notice
      under Federal Rule of Civil Procedure 77(d) of the entry of the
      judgment or order sought to be appealed within 21 days after entry;

             (B) the motion is filed within 180 days after the judgment or
      order is entered or within 7 days after the moving party receives
      notice under Federal Rule of Civil Procedure 77(d) of the entry,
      whichever is earlier; and

             (C) the court finds that no party would be prejudiced.

Fed. R. App. P. 4(a)(6) (emphasis added). Although Federal Rule of Civil

Procedure 77(d)(1) requires that parties be notified immediately after the district

court enters an order or judgment in their case, “[l]ack of notice of the entry does

not affect the time for appeal or relieve—or authorize the court to relieve—a

party for failing to appeal within the time allowed, except as allowed by Federal

Rule of Appellate Procedure 4(a),” Fed. R. Civ. P. 77(d)(2).

      Thus, when Mr. Farner filed his Rule 60(b)(6) motion, two years after entry

of judgment, the Federal Rules of Appellate and Civil Procedure barred granting

him relief to file an appeal. A court cannot circumvent that prohibition by

invoking Rule 60(b)(6). As we stated in Clark v. Lavallie, 204 F.3d 1038, 1041

(10th Cir. 2000):

      [W]e see no latitude on the clear and restrictive language of Rule
      4(a)(6). . . . [T]he addition of that rule was designed to respond to

                                         -4-
      the circumstances that had prompted courts to use Fed. R. Civ.
      P. 60(b)(6) to circumvent the deadlines specified by Fed. R. App.
      P. 4(a)(5). . . . [T]he specificity of Rules 4(a)(6) and 77(d) precludes
      the use of Fed. R. Civ. P. 60(b)(6) to cure problems of lack of notice.

(internal quotation marks omitted).

      Finally, to the extent that Mr. Farner may be arguing that he is entitled to

the relief sought on the ground of ineffectiveness of counsel, we note that he had

no constitutional right to effective assistance of counsel in his § 2254 proceeding.

See Coleman v. Thompson, 501 U.S. 722, 752 (1991) (no constitutional right to

counsel in state postconviction proceedings); Coronado v. Ward, 517 F.3d 1212,

1218 (10th Cir. 2008) (no constitutional right to counsel in § 2254 proceedings).

      Accordingly, we DENY Mr. Farner’s request for a COA and DISMISS this

appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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