UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KEVIN TOMMIE HALL, Defendant - Appellant. No. 19-3026 (D.C. Nos. 2:18-CV-02642-KHV & 2:06-CR-20162-KHV-1) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY 

________________ _________________ Before BRISCOE , MATHESON , and CARSON , Circuit Judges.

________________ _________________ Kevin Tommie Hall, a federal pris oner proceeding pro se, seeks to appeal the district court’s denial in part a nd dismissal in part of his mo tion filed under Fed. R. Civ. P. 60(b). We deny a certificat e of appealability (COA) and dis miss this appeal. 1 I. Background In 2008, Hall was convicted of a rmed bank robbery; using, carry ing or brandishing a firearm during and in relation to a crime of violence; and po ssession of a firearm by a

 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 This matter was abated pending a ruling by the district court on whether to grant a COA regarding its denial of Ha ll’s Rule 60(b) motion. The di strict court denied a COA on June 27, 2019. We theref ore lift the abatement. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 convicted felon. The district court sentenced him to 594 month s’ imprisonment. This court affirmed his conviction an d sentence. In 2012, Hall file d a motion to vacate under 28 U.S.C. § 2255. In 2015, the d istrict court denied relief an d denied a COA. This court also denied a COA. In 2018, Hall filed in the distr ict court a pleading he labeled “Rule 60(b) Motion Revisited [and] Rule 60(b)(6) New Motion.” R., Vol. I at 598. The district court construed Hall’s filing, in part, as a motion for relief under Fed. R. Civ. P. 60(b). After denying relief under that Rule, the court dismissed the remaind er of Hall’s motion for lack of jurisdiction as an unauth orized second or successive § 2255 motion. II. Discussion Hall must obtain a COA to pursue an appeal. See Spitznas v. Boone , 464 F.3d 1213, 1217-18 (10th Cir. 2006) (h olding a COA is required to ap peal from the denial of a Rule 60(b) motion in a habeas case); United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008) (holdi ng a federal prisoner must obtain a COA to appeal the district court’s dismissal of an unauth orized second or s uccessive § 225 5 motion for lack of jurisdiction); see also 28 U.S.C. § 2253(c)(1)(B). We li berally construe Hall’s pro s e opening brief and application for a COA. See Hall v. Scott , 292 F.3d 1264, 1266 (10th Cir. 2002). A. Denial of Rule 60(b) Motion Judgment was entered on Hall’s § 2255 motion in 2015. In his l atest motion, which he filed in 2018, Hall argue d that the district court fai led to rule on all of the claims in his § 2255 proceeding that related to an aiding and a betting charge. The district3 court construed this portion of H all’s motion as properly seeki ng relief under Rule 60(b). See Spitznas , 464 F.3d at 1224-25 (holding tha t district court’s failure to rule on a claim is a defect in the integrity of fe deral habeas proceedings that may be raised in a Rule 60(b) motion). The court first held that the motion was untimely if Hall sough t relief under Rule 60(b)(1) because it was not filed within one year of the judgme nt in his § 2255 proceedings. See Fed. R. Civ. P. 60(c)(1); see also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 393 ( 1993). The district court further held th at Hall did not satisfy the R ule 60(b)(6) standard for relief, which ma y only be granted when it would offend justice to deny such relief. See Zurich N. Am. v. Matrix Serv., Inc. , 426 F.3d 1281, 1293 (10th Cir. 2005). The c ourt concluded that , contrary to Hall’s assertion, the district court (a nd this court) had considered H all’s claims regarding the aiding and abetting charge. Because the district court’s ru lings rested on procedural groun ds, Hall must show both “that jurists of reason would find it debatable whether the [m otion] 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 procedu ral ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (empha sis added). Hall fails to sho w that reasonable jurists would debate t he district court’s ruling tha t his latest motion, if filed under Rule 60(b)(1), was untimely. He maintains only that the court stood behind “false procedural barriers.” Aplt . Opening Br.-COA Appl. at 16.4 Hall also fails to show that the district court’s denial of rel ief under Rule 60(b)(6) is debatable. In denying Hall’s first § 2255 motion, the distr ict court addressed his claim that his trial counsel was ineffe ctive in failing to object to a jury instruction on aiding and abetting. Hall filed a motion fo r reconsideration, arguing tha t the court had misconstrued his claims regarding the aidi ng and abetting charge. The distr ict court denied his motion for reconsideration. Hall argue s that the court failed to cons ider his argument based on Rosemond v. United States , 572 U.S. 65 (2014), which he says he raised in his motion for reconsideration. But w e find no reference to Rosemond in that motion. 2 Hall does not show that reasonable jurists woul d debate the district court’s denial of his latest motion, to the extent that he sought relief under Rule 60(b)(6). B. Dismissal of Unauthorized Seco nd or Successive § 2255 Motion The district court dismissed for l ack of jurisdiction the remai nder of Hall’s motion, which it construed as raising cl aims of error at his sentencing . The court held that this portion of the motion constituted an unautho rized second or suc cessive § 2255 motion. See United States v. Nelson , 465 F.3d 1145, 1148 (10th Cir. 2006) (“A § 2255 motion is one claiming the right to be releas ed upon the ground that the sent ence was imposed in violation of the Constitution or laws of the United States . . . or is other wise subject to collateral attack.” (internal quotation marks omitted)). Once again, Hall fails to show “ that jurists of reason would find it debatable whether t he district court was correct in its procedural ruling.” Slack , 529 U.S. at 484.

2 Hall did raise Rosemond in his application for a COA in this court. We denied a COA.5 Hall argues that his motion is not a second or successive § 225 5 motion because his sentencing claims were not ri pe when he filed his first § 2 255 motion. He cites In re Weathersby , 717 F.3d 1108 (10th Cir. 2013), i n which we held that a defen dant’s second § 2255 motion was not “second or s uccessive” because the basis for his claim—the vacatur of a state court convicti on that was used to enhance hi s federal sentence—did not exist before the conclusion of his § 2255 proceedings, id. at 1111. Hall argues that his sentencing claims did not ripen until the Supreme Court’s decis ion in Moncrieffe v. Holder , 569 U.S. 184, 194-9 5 (2013) (holding that, under the categori cal approach, a state court drug conviction did not qualify as an aggravated fe lony). The exception to the bar on unaut horized successive § 2255 moti ons that Hall invokes applies “where the fact ual basis for a claim does not y et exist.” United States v. Williams , 790 F.3d 1059, 1068 (10th Cir. 2015). Yet Hall does not pres ent any new factual basis for his sentencing claims . Instead, he argues that, und er the reasoning in Moncrieffe , the district court erred in usi ng one of his prior conviction s to enhance his sentence. But the fact that Hall did not identify that argumen t while his § 2255 proceedings were pending does not establish that he could not h ave done so. Cf. Prost v. Anderson , 636 F.3d 578, 588- 89 (10th Cir. 2011) (hol ding defendant coul d have included in his first § 2255 motion a novel statutory construction argum ent that the Supreme Court later vindicated in another defen dant’s § 2255 proceeding). Th us, Hall has not shown that reasonable jurists would d ebate the district court’s holdi ng that this portion of his latest motion, in which he sough t to bring claims challenging h is sentence, was an unauthorized second or successive § 2255 motion.6 III. Conclusion We deny Hall’s application fo r a COA and dismi ss the appeal. We grant Hall’s application to proceed without prepayment o f fees and costs.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk