UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ STEVEN A. DELOGE, Petitioner - Appellant,

v. WARDEN, WYOMING MEDIUM CORRECTIONAL INSTITUTION; WYOMING ATTORNEY GENERAL, Respondents - Appellees. No. 18-8091 (D.C. No. 2:04-CV-00317-ABJ) (D. Wyo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY 

________________ _________________ Before LUCERO , MATHESON , and McHUGH , Circuit Judges.

________________ _________________ Steven A. DeLoge, a Wyoming stat e prisoner, filed a motion in t he district court, purportedly under Federal Rule of Civil Procedure 60(b). The d istrict court treated the motion as an unauthorized secon d or successive motion to vacate his sentence under 28 U.S.C. § 2254 and dismissed it for lack of jurisdiction. Ap pearing pro se, 1 DeLoge

 This order is not binding prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, for its persuasive value consistent with Fed. R. App. P . 32.1 and 10th Cir. R. 32.1.

1 Because DeLoge appears pro se, we afford his filings a liberal construction, see Garza v. Davis , 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft arguments or otherwise advocate for him, see Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). FILED United States Court of Appeals Tenth Circuit 

### March 13, 2019
Elisabeth A. Shumaker Clerk of Court2 seeks a certificate of appealab ility (“COA”) to challenge the d istrict court’s ruling. We deny a COA and dis miss this matter. Background DeLoge pleaded guilty to six coun ts of sexual assault against h is step-daughter and was sentenced to six consecutiv e life terms. On appeal, he arg ued that the state sexual assault sentencing statute was unconstitutional because it impo sed multiple punishments for the same crime. The Wyoming Supreme Court (“WSC”) rejected that argument and affirmed his sentence. DeLoge v. State , 55 P.3d 1233, 1238-39 (Wyo. 2002) ( DeLoge I ). While that appeal was pending, D eLoge filed a motion to withdra w his guilty pleas and a post-conviction motion seeking the return of seized property. The WSC affirmed the trial court’s deni al of the motion to withdraw the guilty pleas, but remanded for a ruling on the merits of the motion for return of seized p roperty. DeLoge v. State , 123 P.3d 573, 578-79 (Wyo. 2005) ( DeLoge II ). After another appeal and remand, see DeLoge v. State , 156 P.3d 1004, 1 012 (Wyo. 2007) ( DeLoge III ), the WSC affirmed the trial court’s dismis sal of DeLoge’s motion. DeLoge v. State , 231 P.3d 862, 863 (Wyo. 2010) ( DeLoge IV ). 2

2 The State of Wyoming had agreed t o return some of the property it had seized to DeLoge’s trial counsel and transf erred the rest to the State of Mississippi for its investigation of other crimes. T he WSC denied the motion becau se “the State did not have possession of [the property] , sovereign immunity prevented the court from awarding him damages for the loss of his p roperty, and he did not presen t a recognizable right to post-conviction preservation o f exculpatory evidence.” DeLoge IV , 231 P.3d at 863-64.3 DeLoge then filed a motion to c orrect an illegal sentence, clai ming that his sentence was illegal because it was based on factual inaccuraci es in his presentence investigation report (“PSR”) and that it violated his constitut ional rights to due process, fundamental fairness, compulsory process, and protection agains t double jeopardy. The trial court denied the motion , concluding that his constitution al claims were barred by the doctrine of res judicata and that the sentencing judge had not relied on the alleged inaccuracies in the PSR in impos ing DeLoge’s sen tence. The WSC affirmed that order. DeLoge v. State , 289 P.3d 776, 780 (Wyo. 2012) ( DeLoge V ). 3 DeLoge’s attempts to obtain relie f in federal court have also b een unavailing. He filed his first § 2254 motion in 2005, raising the same claims he had raised in the state court proceedings. After the d istrict court denied the petitio n on the merits, this court denied a COA and dismissed the appeal. DeLoge v. Abbott , 340 F. App’x 521, 522 (10th Cir. 2009). We also denied DeLoge’s 2014 motion seeking authorization to file a second or successive § 2254 pe tition, finding that his proposed claims were not based on new evidence establishing his act ual innocence and therefore di d not meet the standards for authorization in 28 U.S.C. § 2244(b)(2). DeLoge then filed what he captio ned as a Rule 60(b) motion and related pleadings in the first § 2254 proceeding , seeking relief from the order d enying the petition on the ground that (1) evidence he obt ained from litigation in Wyoming and Mississippi shows

3 The WSC also denied without comment DeLoge’s petition for revi ew of the district court’s denial of anoth er motion for post-conviction r elief.4 the district court erred in denyi ng him discovery or an evident iary hearing before ruling on the merits of his § 2254 moti on; (2) his prosecutorial misco nduct and ineffective assistance of counsel claims w ith respect to the seizure of his property would have been substantiated if the court had h eld an evidentiary hearing; (3) the state’s subsequent repeal of the sentencing statute in effect when he was sentence d demonstrates that the statute was unconstitutional; and (4) the district court should have allowed further discovery and held a hearing on h is claim that the placement of his victim and her brother into the custody of the state’s lead investigator violated his constitutional right to confront the witnesses against hi m. The district court constru ed the motion as a § 2254 habeas petition, concluded it wa s an unauthorized second or suc cessive habeas petition, and dismissed it for lack of jur isdiction. In a separate order , the district court also denied DeLoge’s request for a COA.
Discussion To appeal the dismissal of his mo tion, DeLoge must obtain a COA

. See 28 U.S.C. § 2253(c)(1)(A); United States v. Harper , 545 F.3d 1230, 1231, 1233 (10th Cir. 2008). To obtain a COA where, as here, a district court has dismissed a filing on procedural grounds, the movant must show bot h “that jurists of reason woul d find it debatable whether the petition states a va lid claim of the denial of a co nstitutional right and that jurists of reason would find it de batable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We need not address the constitutional question if we conclude that reasonable juri sts would not debate the district court’s resoluti on of the procedural one. Id . at 485.5 A Rule 60(b) motion amounts to a second or successive petition for habeas relief if it either “seeks to add a new g round for relief” or “attacks th e federal court’s previous resolution of a claim on the merits ,” and that a “claim” is “an asserted federal basis for relief from a state court’s judgment of conviction.” Gonzalez v. Crosby , 545 U.S. 524, 530, 532 (2005) (internal quot ation marks omitted). Thus, Rule 60(b) cannot be used to “circumvent[] AEDPA’s requirement t hat a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered fac ts.” Id . at 531. “[A] ‘true’ 60(b) motion . . . e ither (1) challenges only a pro cedural ruling of the habeas court which precluded a me rits determination of the habe as application; or (2) challenges a defect in the in tegrity of the federal habeas proceeding . . . .” Spitznas v.
Boone , 464 F.3d 1213, 1215-16 (10t h Cir. 2006) (citation omitted). Regardless of how a movant characterizes a motion, it is treated as a habeas petiti on if it “asserts or reasserts a federal basis for relief” from the underlying conviction. In re Lindsey , 582 F.3d 1173, 1175 (10th Cir. 2009) (per curiam ) (internal quotation marks om itted). A Rule 60(b) motion that challenges a district court’s decision not to hold an evidentiary hearing is a successive habeas petition becaus e it challenges the habeas cou rt’s previous ruling on the merits of that claim. Id . (explaining that if a district court decides not to hold an evidentiary hearing because the prisoner is entitled to no reli ef, then the court “necessarily made a merits determination”). Here, DeLoge maintains that he is not attacking the merits of t he habeas court’s ruling but is instead asserting a flawed procedural ruling or d efect in the integrity of the proceeding that amounts to extr aordinary circumstances under ru le 60(b)(6).6 Specifically, he claimed in his m otion that the habeas court’s “failure to allow factdevelopment proceedings prior t o ruling on the merits of [his] petition deprived [him] of the opportunity to adequately s upport his claims.” R. Vol. 1 a t 840. But we agree with the district c ourt’s conclusion that his moti on is an attempt to relitigate the merits of the clai ms he raised in his original h abeas petition and is therefore a second or successive petition. T he fact that he couched his claims in procedural terms by challenging the habeas court’ s decision not to allow additio nal discovery or hold an evidentiary hearing, does not cha nge the fact that at base, his current claims, like his original claims, challenge the legality and constitutionality o f his sentence and sought the return of the seized property. See In re Lindsey , 582 F.3d at 1175. Because the substance of DeLoge’ s motion did not challenge a pr ocedural ruling that prevented the first habeas court from considering the meri ts of his claims and instead sought “vindication of a habeas claim by challenging the habeas court’s previous ruling on the merits of” his claim, see Spitznas , 464 F.3d at 1215-16 (b rackets and internal quotation marks omitted), we conc lude that reasonable jurists c ould not debate that the district court was correct in tr eating his Rule 60(b) motion as an unauthorized second or successive § 2254 petition. Accor dingly, we deny a COA and dis miss this matter.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk