Nos. 2:14-CV-02142-CM and 2:05-CR-20018-CM-1) (D. Kan.)
BACHARACH, MURPHY, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michael R. Murphy Circuit Judge.
matter is before the court on Carlos Jackson's pro se
request for a certificate of appealability
("COA"). Jackson pleaded guilty to "conspiring
to manufacture and distribute 280 grams or more of cocaine
base and using a firearm in furtherance of a drug
crime." United States v. Jackson, 598 Fed.Appx.
570, 571 (10th Cir. 2015). Jackson did not file a direct
appeal. Id. Instead, he filed a 28 U.S.C. §
2255 motion for post-conviction relief, alleging ineffective
assistance of trial counsel during plea negotiations and at
sentencing. Id. at 571-72. The district court denied
Jackson's § 2255 motion, concluding his first claim
lacked merit and his second claim was barred by a waiver of
collateral review set out in Jackson's plea agreement.
Id. at 572. This court denied Jackson's request
for a COA and dismissed his appeal. Id. at 573.
than two-and-one-half years after the district court denied
Jackson's § 2255 motion, and more than two years
after this court denied Jackson's request for a COA,
Jackson filed a motion in the district court seeking
Fed.R.Civ.P. 60(b)(4) relief from the denial of his §
2255 motion. In his Rule 60(b)(4) motion, Jackson
asserted the district court's denial of his § 2255
motion was "void" because the district court had
not addressed all of the claims of ineffective assistance set
out in that motion. The district court began its analysis by
noting Jackson's motion was a true Rule 60(b) motion,
rather than a second or successive § 2255 motion,
because it asserted the district court failed to resolve all
grounds set out in the original § 2255 motion. See
Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir.
2006) (describing differences between these two types of
motions); see also United States v. Rogers, 657
Fed.Appx. 735, 738 (10th Cir. 2016) (holding that a
"claim that the district court failed to consider a
ground raised in" an original post-conviction motion
amounts to a true Rule 60(b) claim). The district court then
denied Jackson's motion, concluding (1) the motion was
not brought within a reasonable time, (2) a failure to
address all issues set out in a post-conviction motion did
not render a judgment disposing of such a motion
"void," and (3) Jackson was incorrect in asserting
all issues set out in the original § 2255 motion were
not resolved by the district court.
seeks a COA so he can appeal the district court's denial
of his Rule 60(b) motion. See Spitznas, 464 F.3d at
1217-18 (holding that when a district court denies a
"true" 60(b) motion, this court "will require
the movant to obtain a [COA] before proceeding with his . . .
appeal"). In so requesting, he asserts the district
court erred in failing to recharacterize his Rule 60(b)(4)
motion as a Rule 60(b)(6) motion and analyzing it
accordingly. But see Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991) (holding that although a "pro se
litigant's pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings
drafted by lawyers," it is not "the proper function
of the district court to assume the role of advocate for the
pro se litigant").
entitled to a COA, Jackson must make "a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). To make the requisite showing, he
must demonstrate "reasonable jurists could debate
whether (or, for that matter, agree that) the [motion] should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further." Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quotations omitted). Furthermore, this court
reviews "a district court's denial of a Rule 60(b)
motion for an abuse of discretion." Jackson v. Los
Lunas Cmty. Program, 880 F.3d 1176, 1191 (10th Cir.
2018). "A Rule 60(b) motion for relief from judgment is
an extraordinary remedy and may be granted only in
exceptional circumstances." Id. at 1191-92.
specifically provides that all motions brought pursuant to
its provisions must "be made within a reasonable
time." Fed. R. Crim. P. 60(c). This rule applies no
matter whether Jackson's motion is treated as arising
under Rule 60(b)(4) or Rule 60(b)(6). As noted by the
district court, Jackson's filings below contained no
explanation for the lengthy delay between the district
court's denial of Jackson's § 2255 motion and
the filing of Jackson's Rule 60(b) motion. Nor does
Jackson's appellate filing contain any such explanation.
Accordingly, the district court's discretionary decision
that Jackson's Rule 60(b) motion is untimely is not
reasonably subject to debate and Jackson is not entitled to a
COA. For that same reason, the district court's alleged
"failure" to recharacterize Jackson's motion as
arising under Rule 60(b)(6) is of no significance.
those reasons set out above, this court
DENIES Jackson's request for a COA and
DISMISSES this appeal.
Jackson's request to proceed on
appeal in forma pauperis is granted.
Jackson also filed a document titled
"Motion of Plain Error Under Rule 52(b) of the Federal
Rules of Criminal Procedure." The district court denied
this motion, concluding Fed. R. Crim. P. 52(b) has no
application in the trial courts. See United States v.
Frady, 456 U.S. 152, 164 (1982) (holding that
"recourse" to Rule 52(b) may only be had on
appeal). Because Jackson does not brief in any manner the
propriety of the district court's resolution of this