UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESSIE AILSWORTH, JR., Defendant - Appellant. No. 15-3153 (D.C. Nos. 5:13-CV-04081-SAC & 5:94-CR-40017-SAC-1) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , GORSUCH , and McHUGH , Circuit Judges.

Jessie Ailsworth, Jr., f iled a motion in the district court, purportedly under Fed. R. Civ. P. 60(b). The district court construed Ailswo rth’s motion as an unauthorized second or successive motion to vacate his sentence under 28 U.S.C. § 2255 and dismissed it for lack of jurisdic tion. Proceeding pro se, Ailsworth seeks to appeal the district court’s ruling. We deny a certificate of appealability (COA) and dismiss this proceeding.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 24, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - Background A jury convicted Ailsworth of drug-tr afficking and other offenses in 1996. The district court sentenced him to 360 months’ imprisonment and ten years’ supervised release. After an uns uccessful appeal to this court, see United States v. Ailsworth , 138 F.3d 843 (10th Cir. 1998), Ailswo rth filed a § 2255 motion in 1999. The district court granted hi m partial relief and entere d an amended judgment in 2002. The amended judgment reduced Ailswort h’s term of supervis ed release to five years. We denied his application for a COA. Since the amended judgment was entered in 2002, Ailsworth has filed several motions seeking to reduce his 360-month pris on sentence, some of which have been construed as unauthorized seco nd or successive § 2255 motions. 1 In his latest motion, Ailsworth once again sought the same relief. He styled this motion as filed pursuant to Rule 60(b)(6) and Magwood v. Patterson , 561 U.S. 320 (2010). 2
Ailsworth contended that his counsel in his first § 2255 proceeding provided

1 In particular, this court held that a motion Ailsworth filed in 2014 was an unauthorized second or su ccessive § 2255 motion. See United States v. Ailsworth , 610 F. App’x 782, 785 n.5 (10th Cir. 2015).
2 Under Rule 60(b)(6), “the court may re lieve a party or its legal representative from a final judgment, order, or proceeding for . . . any other reason that justifies relief.” In Magwood , the Supreme Court held that where “there is a new judgment intervening between the two habeas petiti ons, an application challenging the resulting new judgment is not ‘second or successive’ at all.” 561 U. S. at 341-42 (citation and internal quotation marks omitted); see also United States v. McGaughy , 670 F.3d 1149, 1159 n.7 (10t h Cir. 2012) (applying Magwood to hold that § 2255 motion filed after amended judgment was not s econd or successive under § 2255(h)).- 3 - ineffective assistance by faili ng to raise an additional cl aim in that proceeding. Specifically, Ailsworth argued that his c ounsel should have claimed that a state conviction did not qualify as a prior c onviction under the Sentencing Guidelines because the conduct underlying that c onviction was part of the federal drug conspiracy charged in this case. Presumably, Ailsworth believes that exclusion of this prior conviction from hi s criminal history would affe ct the length of his prison sentence. Ailsworth asked the district c ourt to set aside its 2002 amended judgment and consider this claim. Because Ailsworth’s motion sought relie f from his federal sentence, the district court construed it as a § 2255 motion. The co urt further held that the § 2255 motion was second or successive and not authori zed by this court. It therefore dismissed the motion for lack of jurisdiction. Discussion Ailsworth must obtain a COA to pursue an appeal. See Unite States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008); see also United States v. Baker , 718 F.3d 1204, 1206 (10th Cir. 2013) (holding COA re quired to appeal dismissal of second or successive § 2255 motion purportedly file d under Rule 60(d)(3 )). Although we liberally construe his pro se application for a COA, see Hall v. Scott , 292 F.3d 1264, 1266 (10th Cir. 2002), we do not assume the role of Ailsworth’s advocate, see Hall v. Bellmon , 935 F.2d 1106, 1110 (10t h Cir. 1991). Notably, we do not craft a party’s- 4 - arguments for him. See Perry v. Woodward , 199 F.3d 1126, 1141 n.13 (10th Cir. 1999). The district court dismissed Ailsworth’s motion for lack of jurisdiction. As that ruling rested on procedur al grounds, he must show both “that jurists of reason would find it debatable whethe r 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) (emphasi s added). Because reasonable jurists would not debate the correctness of the district court’s proce dural ruling, Ailsworth fails to meet the second part of this standa rd, and we therefore need not address the first part. Ailsworth asserts that the district c ourt erred in converting his Rule 60(b) motion to a successive § 2255 motion. Bu t a post-judgment motion—however it is characterized by the movant—is treated as a § 2255 motion if it “asserts or reasserts a federal basis for relief” from the m ovant’s conviction or sentence. In re Lindsey , 582 F.3d 1173, 1175 (10th Cir. 2009) (internal quotation mark s omitted). In contrast, a proper Rule 60(b) motion either challenge s “a procedural ruling of the [§ 2255] court which precluded a merits de termination” or asserts “a defect in the integrity of the [§ 2255] proceeding.” Id. (internal quotation marks omitted). Ailsworth identifies no basi s for the district court to treat his motion as a proper Rule 60(b) motion. He did not cha llenge any procedural ruling by the district court precluding a merits review of any of his § 2255 claims. Nor did he explicitly- 5 - claim any defect in the integrity of his § 2255 proceedings. Ra ther, he argued that his counsel was ineffec tive in failing to rais e an additional issue in those proceedings. But “an attack based on the movant’s ow n conduct, or his habeas counsel’s omissions, . . . ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have th e merits determined favorably.” Gonzalez v. Crosby , 545 U.S. 524, 532 n.5 (2005); see also United States v. Lee , 792 F.3d 1021, 1023-25 (8th Cir. 2015) (holdi ng claim of ineffective assi stance of counsel in § 2255 proceedings did not amount to a procedur al defect in the integrity of those proceedings); In re Coleman , 768 F.3d 367, 371-72 (5th Cir. 2014) (per curiam) (reaching same holding in habeas pr oceedings under 28 U.S.C. § 2254), cert. denied , Coleman v. Stephens , 135 S. Ct. 41 (2014); Franqui v. Florida , 638 F.3d 1368, 1372-74 (11th Cir. 2011) ( holding counsel’s omission of a claim from a federal habeas petition was not a defect in the integrity of the habeas proceedings). Conclusion Ailsworth has not demonstrated that reasonable jurists would debate the correctness of the district court’s ruling th at, because his motion sought § 2255 relief, it was not a proper Rule 60(b) motion. And he does not present any argument challenging the court’s further determinat ion that his § 2255 motion was second or successive and unauthorized, and therefore subject to dismissal for lack of- 6 - jurisdiction. Accordingly, we deny Ails worth’s application fo r a COA and dismiss the appeal.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk