                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  October 19, 2010
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 10-3147
          v.                                              (D. of Kan.)
 JAMES EARL LINDSEY,                         (D.C. Nos. 5:06-CV-04143-RDR and
                                                   5:03-CR-40011-RDR-1)
               Defendant-Appellant.


           ORDER DENYING A CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      James Earl Lindsey, a federal prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the denial of his Rule 60(b) motion, which asked

the district court to reconsider its refusal to vacate his sentence under 28 U.S.C.

§ 2255. F ED . R. C IV . P. 60(b). The district court denied the motion because it had

previously considered all of Lindsey’s ineffective assistance of counsel claims.




      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Having jurisdiction under 28 U.S.C. §§ 2253(c), 1291, we DENY Lindsey’s

request for a COA and DISMISS his appeal.

                                  I. Background

      Lindsey was convicted on federal drug and firearm charges and received a

sentence of 228 months of imprisonment. We affirmed that conviction on direct

appeal. United States v. Lindsey, 160 F. App’x 708 (10th Cir. 2005).

      Lindsey then sought § 2255 relief, raising various ineffective assistance of

counsel claims. The district court denied his petition, and we dismissed his

subsequent appeal as untimely. United States v. Lindsey, 264 F. App’x 710 (10th

Cir. 2008).

      He then filed a Rule 60(b) motion, asking the district court to set aside its

order denying his § 2255 petition. The district court transferred the matter to this

court as a second or successive § 2255 petition, and we ruled the district court did

not err in transferring the matter, denied Lindsey’s motion to remand, and

terminated the matter. In re Lindsey, 582 F.3d 1173 (10th Cir. 2009). Lindsey

next filed a second Rule 60(b) motion, which the district court again transferred

to this court and which we again refused to remand and terminated. In re

Lindsey, No. 10-3006 (10th Cir. March 1, 2010). Finally, Lindsey filed the

present Rule 60(b) motion, alleging the district court failed to address one of the

ineffective assistance of counsel claims raised in his original § 2255 motion. The

district court denied the motion and Lindsey appeals.

                                         -2-
                                   II. Discussion

      A federal petitioner may not appeal from the denial of a Rule 60(b) motion

without first obtaining a COA. Spitznas v. Boone, 464 F.3d 1213, 1217–18 (10th

Cir. 2006). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because

Lindsey is proceeding pro se, we will construe his filings liberally. Haines v.

Kerner, 404 U.S. 519, 520–21 (1972).

      Lindsey attempts to show the denial of a constitutional right by arguing the

district court failed to consider one of his ineffective assistance of counsel claims.

Specifically, he contends his counsel, in an effort to protect his professional

reputation, failed to challenge on direct appeal the district court’s determination

that Lindsey did not suffer a violation of his Speedy Trial Act rights. See 18

U.S.C. § 3161 et seq. We agree with the district court, however, that it did

consider Lindsey’s arguments in a lengthy and detailed ruling rejecting his

claims. See United States v. Lindsey, 505 F. Supp. 2d 838, 842–43 (D. Kan.

2007) (noting Lindsey’s “first contention is that his counsel rendered ineffective

assistance on appeal because he failed to challenge this court’s ruling that

defendant’s rights under the Speedy Trial Act . . . were not violated,” then

rejecting that argument with a lengthy analysis).




                                         -3-
      Because the district court addressed Lindsey’s claim that his counsel

refused to raise the issue on appeal, Lindsey fails to show the denial of a

constitutional right.

                                 III. Conclusion

      For the foregoing reasons, we DENY Lindsey’s request for a COA and

DISMISS this appeal.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Circuit Judge




                                         -4-
