UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

ANTHONY E. MCAFEE, SR.,

Plaintiff–Appellant,

v.

WARDEN PLOUGH; and THE 

ATTORNEY GENERAL OF THE 

STATE OF COLORADO,

 

Defendants–Appellees.

No. 10-1275

(D.C. No. 1:09-CV-00833-ZLW)

(D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before KELLY, EBEL, and LUCERO, Circuit Judges. 

Anthony McAfee, a federal prisoner proceeding pro se, seeks a certificate of 

appealability (“COA”) to contest the district court’s denial of his Federal Rule of Civil 

Procedure 60(b) motion. Because the district court did not have jurisdiction, we deny 

McAfee’s request and remand to the district court. 

 *

 This order is not binding precedent except under the doctrines of law of the case, 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

FILED 

United States Court of Appeals 

Tenth Circuit 

October 28, 2010

Elisabeth A. Shumaker 

Clerk of Court
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I 

 McAfee was found guilty in 2000 of four charges relating to an incident in which 

he drove his car into a telephone pole, killing one of his passengers and seriously injuring 

the other. After being denied relief by the Colorado Court of Appeals on both direct 

appeal and collateral review, McAfee filed a 28 U.S.C. § 2254 habeas petition in federal 

district court on April 10, 2009. Finding his petition time-barred under 28 U.S.C. § 

2244(d), the district court denied the petition. McAfee then filed another pleading, which 

the district court construed as a motion to reconsider under Federal Rule of Civil 

Procedure 59(e) and denied. McAfee filed a motion for relief from judgment pursuant to 

Federal Rule of Civil Procedure 60(b). The district court once again denied relief. 

Finally, McAfee filed another Rule 59(e) motion and the district court denied him 

reconsideration. McAfee now seeks a COA to appeal the latter two orders. 

II 

A litigant must obtain a COA to appeal the denial of a Rule 60(b) motion seeking 

to reopen a § 2254 proceeding. See Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th 

Cir. 2006). However, before turning to the appropriateness of a COA, we must first 

determine whether McAfee’s Rule 60(b) motion is actually a “second or successive” 

habeas petition over which the district court would lack jurisdiction absent prior 

authorization from this court. See 28 U.S.C. § 2244(b)(3)(A). Distinguishing between a 

true Rule 60(b) motion and a second or successive habeas petition turns on the “relief 

sought, not [the] pleading’s title.” United States v. Nelson, 465 F.3d 1145, 1149 (10th 

Cir. 2006). If a petitioner seeks “relief from the conviction or sentence,” his claim is a 
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successive habeas petition. Id. at 1147. The same is true if the motion claims that the 

district court erred on the merits of the habeas petition. See Gonzalez v. Crosby, 545 

U.S. 532, 530-32 (2005). However, if a pleading attacks “some defect in the integrity of 

the federal habeas proceedings,” it should not be treated as a successive petition. Id.

McAfee’s Rule 60(b) motion does not attack the district court’s handling of his 

habeas petition. As he did in his initial habeas petition, McAfee outlines the failings of 

his appellate counsel. Even liberally construing his Rule 60(b) motion and his 

subsequent motion for reconsideration, see Cummings v. Evans, 161 F.3d 610, 613 (10th 

Cir. 1998) (pro se pleadings should be liberally construed), we cannot discern any claim 

that attacks the integrity of the federal habeas proceedings themselves, and his petition 

thus remains within the ambit of 28 U.S.C. § 2244(b). 

Because his Rule 60(b) motion is actually a successive habeas petition, McAfee 

must seek leave from this court “authorizing the district court to consider the 

application.” See 28 U.S.C. § 2244(b)(3)(A). Absent our authorization, the district court 

does “not even have jurisdiction to deny the relief sought in the pleading.” Nelson, 465 

F.3d at 1148. Thus, the district court should never have reached the merits of the Rule 

60(b) motion. 

III 

For the foregoing reasons, we DENY McAfee’s application for a COA. We 

VACATE the district court’s judgment and REMAND the case to the district court to 

dismiss for lack of jurisdiction, or to transfer the motion to this court as a request to file a 

second or successive habeas petition pursuant to 28 U.S.C. § 2244(b)(4). 
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Because McAfee has failed to advance “a reasoned, nonfrivolous argument on the 

law and facts in support of the issues raised on appeal,” DeBardeleben v. Quinlan, 937 

F.2d 502, 505 (10th Cir. 1991), we also DENY his motion to proceed in forma pauperis. 

 Entered for the Court, 

 Carlos F. Lucero 

 Circuit Judge