FILED

United States Court of Appeals

Tenth Circuit

August 26, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FREDERICK OLUWOLE

SOLARIN,

Defendant-Appellant.

No. 11-1032

(D.C. No. 1:05-CR-00311-CMA-KMT-1)

(D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.

Frederick Oluwole Solarin, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s dismissal, for lack

of jurisdiction, of his motion under Fed. R. Civ. P. 60(b) and his motion to take

judicial notice. We deny a COA and dismiss this matter. 

I.

Mr. Solarin was convicted of bank robbery by force or violence and

carrying a firearm during and in relation to a crime of violence and sentenced to

244 months of imprisonment. United States v. Solarin, 250 F. App’x 887, 888

(10th Cir. 2007). He unsuccessfully pursued relief under 28 U.S.C. § 2255,
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raising three claims: (1) when he was suspected of the robbery and taken into

state custody for an alleged parole violation, his custody really was an

unconstitutional federal arrest without a warrant or probable cause; (2) he gave an

involuntary confession because his arrest was illegal and agents were coercive in

interrogating him; and (3) his counsel was ineffective. The district court denied

the first claim for procedural default, concluding that he had not shown cause for

failing to raise the claim on direct appeal. For the same reason, it also applied

procedural default to the aspect of the second claim alleging that his confession

was involuntary because his arrest was illegal. It denied the remainder of the

second claim and the third claim on the merits. This court denied a COA. United

States v. Solarin, 383 F. App’x 772, 774 (10th Cir. 2010).

After this court’s decision, Mr. Solarin filed a Rule 60(b) motion asking the

district court to set aside its order denying relief under § 2255. He argued he

showed cause for not raising his arrest-related claims on direct appeal and that the

other claims were improperly decided. He also filed a separate Request to Take

Judicial Notice Pursuant to Fed. R. Evid. 201(d). In a minute order, the district

court denied both motions for lack of jurisdiction.

Mr. Solarin promptly moved for reconsideration, asserting that the court

did have jurisdiction to hear his motions because he set forth “true” Rule 60(b)

claims as discussed in Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006),

and because judicial notice may be taken at any time. The court granted his
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motion to reconsider, but again denied the motions for lack of jurisdiction. It

held that the motions did not assert “true” Rule 60(b) claims, but instead

effectively were successive motions for relief under § 2255 because they argued

or reargued the merits of the rulings denying relief from his convictions. Because

this court had not authorized the motions to be filed, the district court concluded 

it lacked jurisdiction to hear them. See 28 U.S.C. § 2255(h); In re Cline,

531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). It declined to transfer the

motions to this court for authorization because “[t]he issues raised in Defendant’s

motions have been fully litigated. This Court and the Tenth Circuit concluded

they have no merit,” and therefore “transferring these motions to the Tenth

Circuit is not in the interest of justice.” R. at 131. Mr. Solarin appeals. 

II.

Mr. Solarin now seeks a COA to challenge the district court’s disposition

of his motions. The district court’s ruling rests on procedural grounds, so he must

show both “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, 529 U.S. 473, 484 (2000). 

A prisoner’s postjudgment filing (however entitled) is effectively a second

or successive § 2255 motion, subject to the restrictions of § 2255(h), if it asserts

or reasserts claims of error in the prisoner’s conviction. See Gonzalez v. Crosby,
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545 U.S. 524, 531-32, 538 (2005); United States v. Nelson, 465 F.3d 1145, 1147

(10th Cir. 2006). But a filing is not subject to § 2255(h)

if it either (1) challenges only a procedural ruling of the habeas court

which precluded a merits determination of the habeas application, or

(2) challenges a defect in the integrity of the federal habeas

proceeding, provided that such a challenge does not itself lead

inextricably to a merits-based attack on the disposition of a prior

habeas petition. 

Spitznas, 464 F.3d at 1216.

Mr. Solarin argues that his motions attacked the district court’s rulings on

procedural default and the integrity of his § 2255 proceeding. In this case,

however, the court’s procedural rulings ultimately were based on a merits

assessment. That is, in determining whether Mr. Solarin established cause for

failing to raise his arrest-related claims on direct appeal, the district court

concluded that his claims were not likely to succeed. And on appeal, this court

stated that Mr. Solarin “failed to show any impropriety in [his] state arrest . . . for

violating his parole. When a possible bank robber is at large, there is nothing

wrong with law-enforcement agencies cooperating and using the simplest means

to take him into custody.” Solarin, 383 F. App’x at 774. It follows that, to

overcome the previous holding regarding lack of cause, Mr. Solarin has to

re-argue the merits of his arrest claim. Thus, even though he purports to

challenge a procedural ruling and the integrity of the § 2255 proceeding, his

motions were “effectively indistinguishable from alleging that [he] is, under the
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substantive provisions of the statutes, entitled to habeas relief.” Gonzalez,

545 U.S. at 532. 

In an analogous situation, where a movant suggested that he was merely

attacking a procedural ruling by requesting an evidentiary hearing, this court

noted, “[w]hile the decision whether or not to hold an evidentiary hearing may be

classified as a procedural ruling, the district court’s decision not to hold an

evidentiary hearing did not preclude a merits determination on [the movant’s]

§ 2255 motion; it was the result of a merits determination.” In re Lindsey,

582 F.3d 1173, 1175 (10th Cir. 2009) (per curiam). Similarly, the district court’s

finding that Mr. Solarin did not establish cause may be classified as a procedural

ruling. In these circumstances, however, the court’s decision did not preclude a

determination of the merits of his arrest-related claims, but instead was the result

of one. 

Mr. Solarin does raise one argument that is not subject to the requirements

of § 2255(h) (i.e., an argument we have called a “true” 60(b) claim), which is his

allegation that the district court failed to rule on his claim that trial counsel was

ineffective for failing to challenge his detention. See Spitznas, 464 F.3d at 1225. 

Thus, reasonable jurists could conclude the district court erred in its procedural

decision regarding this issue. But he cannot also show that reasonable jurists

would debate whether the issue presents a valid claim. The record indicates that

the issue was addressed, with the magistrate judge concluding, albeit briefly, that
1 This discussion was in conjunction with the analysis of the first claim, but

the magistrate judge was not required to separately re-analyze counsel’s

performance and come to the same conclusion under the heading for claim three.

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Mr. Solarin failed to rebut the presumption that “trial counsel’s strategy was

sound under the circumstances.” Dist. Ct. Doc. 161 at 10.1

 The district judge

subsequently adopted the magistrate judge’s recommendations, and this court

denied a COA. To the extent that Mr. Solarin believes this or any other claim

was not properly adjudicated because of a lack of evidence, such arguments

constitute arguing or re-arguing the merits. See Gonzalez, 545 U.S. at 531-32

& n.5; Spitznas, 464 F.3d at 1216.

III.

No reasonable jurist could debate whether the issues presented in

Mr. Solarin’s motions are “adequate to deserve encouragement to proceed

further.” Slack, 529 U.S. at 484 (internal quotation marks omitted). The

application for a COA is DENIED and this matter is DISMISSED. The motion

to proceed without prepayment of costs or fees is GRANTED. The motion for

free copies is DENIED.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk