FILED

United States Court of Appeals

Tenth Circuit

August 21, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN P. CALCARI,

Petitioner-Appellant No. 12-1080

v. (D. of Colo.)

EXECUTIVE DIRECTOR JOE

ORTIZ; and THE ATTORNEY

GENERAL OF THE STATE OF

COLORADO,

Respondents-Appellees.

(D.C. No. 1:04-CV-01298-ZLW)

and

BRIAN P. CALCARI,

Petitioner-Appellant

No. 12-1170

v. (D. of Colo.)

JOHN W. SUTHERS, Attorney

General of the State of Colorado,

Respondent-Appellee.

(D.C. No. 1:00-CV-00350-RPM)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.** 

*

 This order is not binding precedent except under the doctrines of law of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

(continued...)
Brian P. Calcari, a Colorado state prisoner, seeks a certificate of

appealability (COA) to enable him to appeal, in two different cases, the district

court’s dismissal of his 28 U.S.C. § 2254 petition. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253(a), and we construe Calcari’s filing liberally because he

is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.

1991).

Nonetheless, no reasonable jurist could conclude the district court’s

dismissals were incorrect. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Accordingly, we DENY the applications for a COA, DENY the applications to

proceed in forma pauperis, and DISMISS the appeals.

I. Facts

In 1996, Calcari was convicted in Colorado state court of first-degree

assault, accessory to attempted first-degree murder, and accessory to first-degree

assault. His convictions were affirmed upon direct appeal in state court. In 2000,

he filed an application for habeas relief, pursuant to 28 U.S.C. § 2254. The

district court denied relief, and we affirmed on jurisdictional grounds related to

Calcari’s failure to exhaust his claims in state court. Calcari v. Suthers, 242 F.3d

**(...continued)

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.

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387 (10th Cir. 2000) (unpublished table decision). Calcari then unsuccessfully

sought post-conviction relief in Colorado state court, before again pursuing

federal habeas relief. The district court denied his renewed petition as untimely

and we affirmed. Calcari v. Ortiz, No. 04-1422, 2005 WL 300424 (10th Cir. Feb.

9, 2005). 

A. Case No. 12-1080

In 2011, Calcari filed several Federal Rule of Civil Procedure 60(b)(4)

motions requesting relief from the prior denials of habeas relief. The district

court determined that the motions were true Rule 60(b) motions challenging the

court’s procedural ruling—the court’s prior decision to deny his applications as

time-barred—as opposed to a second or successive habeas application. But the

court concluded that Calcari had not established grounds for relief under Rule

60(b)(4), ultimately denying the motions, declining to grant a COA, and denying

Calcari’s motion to proceed in forma pauperis. Calcari timely appealed.

B. Case No. 12-1170

In 2011, Calcari filed several Federal Rule of Civil Procedure 60(b)(4)

motions requesting relief from the prior denials of habeas relief. The district

court denied the motions as “frivolous and without merit,” and denied a COA. R.,

Vol. II at 25. Calcari then filed a notice of appeal, but did not do so until more

than 30 days after entry of the district court’s order. We dismissed the appeal as

untimely. See Calcari v. Suthers, No. 12-1081 (10th Cir. Mar. 14, 2012). But

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while the appeal was pending, Calcari filed a second notice of appeal, along with

an affidavit asserting that he never received a copy of the district court’s original

denial order. The affidavit was construed as a motion to reopen the time to

appeal, which the district court denied “because the pleadings are frivolous,” and

again denied a COA. R., Vol. II at 35. Calcari then filed a motion to reconsider,

and asked the court to produce evidence of the “clerk’s mailing of judgment order

dated January 13, 2012.” Id. at 40. The district court denied the motion, as the

“appeal is not taken in good faith because [Calcari] has not shown the existence

of a reasoned, nonfrivolous argument on the law and facts in support of the

issues.” Id. at 42.

Calcari now appeals the denial of his motion to reopen the time to appeal,

and his motion for reconsideration and production.

II. Discussion

The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a

petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of

a COA. 28 U.S.C. § 2253(c)(1)(A). To receive a COA, the applicant must

demonstrate a “substantial showing of the denial of a constitutional right.” Id. at

§ 2253(c)(2). When the district court denies a habeas petition on procedural

grounds, a COA should issue only when the prisoner shows that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. 

A. Case No. 12-1080

Construing his pro se filing liberally, Calcari appears to raise two issues:

whether the district court (1) improperly construed his Rule 60(b)(4) motions; and

(2) failed to apply principles of equitable tolling. Additionally, Calcari now

requests leave to file a second or successive habeas petition pursuant to 28 U.S.C.

§ 2244(b)(3)(A). For substantially the same reasons as the district court, we deny

all of Calcari’s requests.

With respect to his argument that the district court improperly construed his

Rule 60(b)(4) motions, Calcari has not presented any evidence supporting his

assertion that the judgment against him is void. As the district court explained,

an order is void for Rule 60(b)(4) purposes if the rendering court was powerless

to enter it due to lack of jurisdiction over the parties or subject matter. See

United States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002). Calcari has not

raised any reasonable arguments suggesting that the court lacked jurisdiction in

this case. As we said in Buck, “[a]ppellants make the all-too-common error of

thinking that a court acts without jurisdiction when it makes a mistake. But a

judgment is not void merely because it is erroneous.” Id. at 1344 (quotation

omitted). And any arguments suggesting that the state court erred—which

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nothing in the record suggests—have been waived. See Rule 60(c)(1) (all Rule

60(b) motions must be “made within a reasonable time”). 

Calcari’s argument that the principles of equitable tolling should apply is

equally without merit. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)

(equitable tolling of the one-year limitation period is available “only in rare and

exceptional circumstances”). There is nothing to suggest that Calcari meets this

high standard, given that it has been many years since judgment was entered.

Finally, an applicant who seeks to file a second or successive habeas

petition faces a “heavy burden of persuasion,” and authorization will only be

granted in cases where the applicant has “made a prima facie showing that he

could meet the requirements of § 2244(b).” LaFevers v. Gibson, 238 F.3d 1263,

1264, 1268 (10th Cir. 2001). At the outset, we note that we normally require a

separate motion for permission under § 2244 to file a second or successive habeas

petition, but in the interest of judicial economy, we have chosen to consider

Calcari’s motion in conjunction with this appeal. See Sherratt v. Utah Bd. of

Pardons & Parole, No. 11-4174, 2012 WL 2045768, at *2 (10th Cir. June 07,

2012).

In support of his petition, Calcari relies on a modified state appellate rule,

Colorado Appellate Rule 51.1(b), which became effective January 1, 2012. The

rule change modified the time allowed for a state prisoner to exhaust his state

remedies, if his federal habeas petition is denied for failure to exhaust. The prior

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rule gave a party 45 days to file a motion in state court, while the modified rule

gives a party 49 days to do so. 

This change has no bearing on this case, given that many years have passed

since Calcari’s habeas petition was denied. Contrary to Calcari’s assertions, this

small change in a state appellate rule does not satisfy § 2244(b)(2)(A)’s

requirement that a second or successive habeas petition “rel[y] on a new rule of

constitutional law, made retroactive.” This is not a new rule of constitutional

law, and there is no indication that it is being applied retroactively. For these

reasons, we DENY Calcari’s request for authorization to file a second or

successive habeas application.

B. Case No. 12-1170

Calcari argues that he has still not received a copy of the district court’s

original denial order—despite having filed two notices of appeal based on that

order—and requests that we allow him to refile his notice of appeal, once he

receives a copy of the district court’s order. Calcari relies on Nunley v. City of

Los Angeles, 52 F.3d 792 (9th Cir. 1995), to argue that his affidavit denying

receipt effectively rebuts the valid presumption governing service to

institutionalized litigants. See, e.g., Lozano v. Ashcroft, 258 F.3d 1160, 1165

(10th Cir. 2001) (finding that a presumption of receipt within five days of mailing

is appropriate whenever the actual receipt date is unknown or disputed). 

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There is actually some reason to believe Calcari may not have received this

document. As support, he points to his prison mail receipt log, which shows only

one delivery in the relevant time period, on January 19, 2012. See R., Vol. II at

34. Calcari asserts that this delivery was a copy of an order granting his request

for a status report in a related case, rather than a copy of the order entered in this

case by the district court on January 13, 2012. Having reviewed the record in the

related case, Civil Action No. 04-cv-01298-ZLW, this appears to be a plausible

explanation.1

 In that case, an order was mailed by the district court to Calcari on

January 17, 2012, two days prior to the delivery noted in the prison receipt log. 

While this evidence does not necessarily rebut the presumption, it does raise an

issue of fact as to whether receipt actually occurred. See Armstrong v. Cornish,

102 F. App’x 118, 120 (10th Cir. 2004). 

But, as we are free to affirm the district court’s ruling on other grounds

supported by the record, remand is not necessary. United States v. Sandoval, 29

F.3d 537, 542 n.6 (10th Cir. 1994). Having reviewed the record, we agree with

the district court that Calcari’s filings in this matter are frivolous and without

merit. Calcari is attempting to seek relief from an order that is over a decade old

and that definitively established his rights and remedies at that time. Calcari’s

1

 We have authority to review this material because we may take judicial

notice of public records, including district court filings. See United States v.

Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of district

court record that was not part of the record on appeal).

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arguments are predicated on a variety of ex-post facto claims and a theory about

the retroactivity of certain Supreme Court cases decided since his initial habeas

petition. All of these arguments lack merit and are frivolous. None of the

Supreme Court cases that could conceivably apply to his claims have been made

retroactive. See Armstrong, 102 F. App’x at 120 (affirming the denial of a motion

on the grounds that the appellant was seeking a “drastic remedy, which is to be

used only in extraordinary situations”).

Accordingly, the district court properly denied Calcari’s motion to reopen

the time to appeal, and his motion for reconsideration and production.

III. Conclusion

Based on the foregoing analysis, we DENY Calcari’s requests for a COA,

DENY the applications to proceed in forma pauperis, and DISMISS the appeals.

Entered for the Court,

Timothy M. Tymkovich

Circuit Judge

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