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

                              FOR THE TENTH CIRCUIT                     August 14, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 15-2035
                                              (D.C. Nos. 1:08-CV-00479-RB-KBM &
ALEJANDRO ESPINOZA,                                   2:04-CR-00852-RB-1)
                                                            (D. N.M.)
      Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.



      Alejandro Espinoza seeks a certificate of appealability (COA) to appeal the

district court’s order treating 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 grant in part and deny in part Mr. Espinoza’s request for a COA.




*
       This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,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.
      I. Background

      Mr. Espinoza was convicted of conspiracy to possess with intent to distribute

500 grams or more of methamphetamine. We affirmed his conviction on direct

appeal. See United States v. Espinoza, 211 F. App’x 795, 797 (10th Cir. 2007). He

subsequently filed a motion to vacate under § 2255, which the district court

dismissed. See United States v. Espinoza, 421 F. App’x 817, 818 (10th Cir. 2010).

We granted a COA on a Brady claim that the district court had failed to address and

remanded to the district court to consider the claim in the first instance. 

The district court denied that claim and we denied Mr. Espinoza’s subsequent request

for a COA. See United States v. Espinoza, 545 F. App’x 783, 784 (10th Cir. 2013).

      In March 2014, Mr. Espinoza filed a Rule 60(b) motion seeking relief from the

district court’s judgment denying his § 2255 motion. The district court treated that

motion as an unauthorized second or successive § 2255 motion and dismissed it for

lack of jurisdiction. Mr. Espinoza filed a timely Fed. R. Civ. P. 59(e) motion to alter

or amend the judgment. The district court denied the Rule 59(e) motion.

Mr. Espinoza filed a timely notice of appeal seeking review of the district court’s

orders denying his Rule 60(b) and 59(e) motions.

      II. COA Standard

      Mr. Espinoza requires a COA to appeal from the district court’s dismissal of

his Rule 60(b) motion, see United States v. Harper, 

, 1233

(10th Cir. 2008), and to appeal from the denial of his Rule 59(e) motion, see


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Dulworth v. Jones, 

, 1135-36 (10th Cir. 2007). To obtain a COA,

Mr. Espinoza 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, 

, 484 (2000).

       III. Rule 60(b) motion

       In his Rule 60(b) motion, Mr. Espinoza first asserted that the district court

judge was biased against him in his § 2255 proceedings. He further argued that the

district court failed to rule on two of his properly presented § 2255 claims. Finally,

he asserted that the government’s withholding of information during his initial

§ 2255 proceedings constituted fraud on the court.

       The district court concluded that Mr. Espinoza’s Rule 60(b) motion “primarily

attacks the Court’s ruling on the merits of his original § 2255 motion—and his

conviction—and thus amounts to a second or successive § 2255 motion.”

R., Doc. 126 at 4. Because Mr. Espinoza had not obtained authorization from this

court to file a second or successive § 2255 motion, the district court dismissed the

motion for lack of jurisdiction. Considering the second part of the Slack test, we

conclude that jurists of reason would find it debatable whether the district court’s

procedural ruling in this case was correct as to the first three arguments in the

Rule 60(b) motion.




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      We have explained that: “[W]hether a postjudgment pleading should be

construed as a successive application depends on whether the pleading (1) seeks

relief from the conviction or sentence or (2) seeks to correct an error in the

previously conducted [§ 2255] proceeding itself.” United States v. Nelson, 

, 1147 (10th Cir. 2006). Stated otherwise, a Rule 60(b) motion is a second or

successive § 2255 motion “if the success of the motion depends on a determination

that the court had incorrectly ruled on the merits in the [§ 2255] proceeding.” In re

Pickard, 

, 1206 (10th Cir. 2012). In contrast, a Rule 60(b) motion is

not a successive § 2255 motion if it challenges only a procedural ruling that

precluded a merits determination or challenges a defect in the integrity of the § 2255

proceedings. See Spitznas v. Boone, 

, 1215-16 (10th Cir. 2006).

                                           A.

      Mr. Espinoza’s first three Rule 60(b) arguments do not attack the district

court’s ruling on the merits of his initial § 2255 motion. Instead, these arguments

challenge a defect in the integrity of his initial § 2255 proceedings based on the

district court’s failure to rule on two of his properly presented § 2255 claims. An

“argument that the district court failed to rule on [a § 2255] claim does not challenge

the merits of the district court’s resolution of [a] § 2255 motion, but only an alleged

defect in the integrity of the earlier § 2255 proceedings.” Peach v. United States,

, 1271 (10th Cir. 2006).




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       Mr. Espinoza’s first argument relates to the district court’s alleged judicial

bias for failing to rule on all of his properly raised claims. He concedes that adverse

rulings may not form the basis for disqualification, but he explains, “[h]ere, however,

there has never been a ruling on these claims, adverse or otherwise.” R., Doc. 121

at 6. He asserts that this demonstrates the district court’s “inability to render fair

judgment,” 

the judge should have recused himself. By failing to do so,

“he denied [Mr. Espinoza] due process and marred the integrity of the habeas

proceedings.” 

       His second and third arguments assert that “the district court failed to rule

upon two properly presented [§ 2255] claims.” 

(capitalization omitted);

see 

court failed to rule upon Petitioner’s Denial of the Right of

Presence claim”); 

(“The district court failed to rule upon Petitioner’s Failure

to Consult Claim”). Although Mr. Espinoza concedes that “the two unaddressed

claims were comprehensively argued in his Rule 60(b) motion,” he contends that he

did so to demonstrate that they were “properly presented.” COA App. at 4(b). The

relief he seeks is to have the district court rule on these claims in the first instance.

See R., Doc. 121 at 23 (“Petitioner undoubtedly has the right to have this claim

decided and heard on its merit”). Because three of the arguments in Mr. Espinoza’s

Rule 60(b) motion seek relief based on the district court’s failure to address the

merits of two of his § 2255 claims, reasonable jurists could debate the district court’s

decision to treat these Rule 60(b) arguments as second or successive § 2255 claims.


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       We next consider whether Mr. Espinoza can meet the first part of the Slack

test. To do so, he must show that he has a “valid claim for the denial of a

constitutional right.” 

. In the Rule 60(b) context, we look to

the underlying claims in Mr. Espinoza’s § 2255 motion that the district court failed to

consider to determine whether they raise constitutional claims. See 

. At this stage, we “simply take a quick look . . . to determine

whether the [movant] has facially alleged the denial of a constitutional right,”

Paredes v. Atherton, 

, 1161 (10th Cir. 2000) (internal quotation marks

and brackets omitted), and we will “not delve into the merits of the claim,” Fleming

v. Evans, 

, 1259 (10th Cir. 2007).

       Mr. Espinoza has met the first part of the Slack test. His underlying § 2255

claims facially allege violations of his Sixth Amendment right to effective assistance

of counsel related to his right to be present during all critical stages of his trial and to

be consulted before counsel waived his right to testify and present any witnesses.

       Under these circumstances, we will remand to the district court to permit that

court to consider the first three arguments in Mr. Espinoza’s Rule 60(b) motion in the

first instance. See 

. In remanding, we express no opinion

on the merits of these three 60(b) arguments. We conclude only that these are the

kinds of arguments that are properly considered in a Rule 60(b) motion and are not

second or successive claims that should have been dismissed.




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                                            B.

      For Mr. Espinoza’s fourth Rule 60(b) argument, he asserted that “the

government’s withholding of information during the initial [§ 2255] proceedings

constitutes fraud.” R., Doc. 121 at 23 (capitalization omitted). He explained that he

learned the full extent of the government’s alleged fraud when he received certain

transcripts in April 2012. Mr. Espinoza brought this argument pursuant to

Rule 60(b)(3), which requires filing within one year after the entry of judgment. See

Fed. R. Civ. P. 60(c)(1). In this case, judgment was initially entered in

Mr. Espinoza’s § 2255 proceeding on December 2, 2009. After remand from this

court on Mr. Espinoza’s Brady claim, the district court entered judgment on January

23, 2013. Mr. Espinoza, however, did not file his Rule 60(b) motion until March 17,

2014—more than one year after entry of judgment—even though he had known of

the alleged fraud since April 2012.1

      We need not decide whether Mr. Espinoza’s fourth argument is a second or

successive § 2255 claim or a proper Rule 60(b) argument because under either

scenario, he is not entitled to a COA. If it is a second or successive claim, the district

court was correct to dismiss it for lack of jurisdiction. If it is a proper Rule 60(b)

argument, it was untimely. We may deny a COA if there is a plain procedural bar to
1
      We note that Mr. Espinoza’s first three arguments were brought pursuant to
Rule 60(b)(4), which requires that they be brought within “a reasonable time,” but
does not require filing within one year of judgment. See Fed. R. Civ. P. 60(c)(1). On
remand, the district court will have the opportunity to consider whether the first three
arguments were filed within a reasonable time.


                                           -7-
relief, even if the district court did not rely on that bar. See Davis v. Roberts,

, 834 (10th Cir. 2005).

       IV. Conclusion

       We grant a COA as to the district court’s determination that the first three

arguments in Mr. Espinoza’s Rule 60(b) motion were second and successive claims

that required dismissal. We remand to the district court to consider the merits of

those Rule 60(b) arguments in the first instance. We deny as moot Mr. Espinoza’s

request for a COA on the denial of his Rule 59(e) motion as we are granting him the

relief he sought in that motion (to have the district court rule on the merits of his

Rule 60(b) motion). We deny a COA as to the fourth argument in Mr. Espinoza’s

Rule 60(b) motion.

                                                 Entered for the Court
                                                 Per Curiam




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