UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOHN CHRISTIAN BURTON, Petitioner - Appellant,

v. JIMMY MARTIN, Warden, Respondent - Appellee. No. 20-5018 (D.C. No. 4:18-CV -00201-GKF-FHM) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before MORITZ , BALDOCK , and EID , Circuit Judges.

________________ _________________ Pro se state prisoner John Christian Burton requests a Certificate of Appealability (“COA”) under 28 U.S.C. § 2253( c)(1)(A) and appeals the dist rict court’s order denying his Rule 60(b) motion. We liber ally review Burton’s filings, see Hall v. Bellmon , 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991), a nd for the following reas ons deny Burton’s request for a COA and dismiss the appeal.
I. Burton was convicted in Oklahoma state court of second-degree burglary after two or more prior felony convictions and was sent enced to forty-two years in prison. Burton

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### March 19, 2021 Christopher M. Wolpert Clerk of Court2 appealed his sentence to the Oklahoma Court of Criminal Appeals, which affirmed his conviction and sentence in September 2016. He did not seek state post-conviction relief. On April 11, 2018, Burton filed a § 2254 pe tition in the district court. Respondent moved to dismiss the petition as time-barred, asserting the one-yea r filing period had expired on December 23, 2017 . Burton responded that he was entitled to equitable tolling under the prison mailbox rule because he mailed his first petition to the court in August 2017. Under the prison mailbox rule, a stat e prisoner’s habeas petition “will be considered timely if given to prison offici als for mailing prior to the filing deadline, regardless of when the court itself receives the documents.” Price v. Philpot , 420 F.3d 1158, 1164 (10th Cir. 2005). Bu t for the prison mailbox rule to apply, Burton needs to establish “the date on which he . . . gave the papers to be filed with the court to a prison official.” Id . at 1165. He can make this showing by either: (1) alleging and proving that he . . . made timely use of the prison’s legal mail system if a satisfactory system is av ailable, or (2) if a legal system is not available, then by timely use of the prison’s regular mail system in combination with a notarized statemen t or declaration under penalty of perjury of the date on which the docum ents were given to prison authorities and attesting that postage was prepaid. Id. at 1166. If an inmate is s eeking to take advantage of the mailbox rule and his prison has a legal mail tracking system, the inmate must use that system. Id

. Here, after reviewing the outgoing legal mail logs from the North Fork Correctional Center (“NFCC”), the district court determined that the prison had an adequate legal mail system ava ilable in August 2017, but that the logs did not reflect any3 outgoing legal mail from Burton du ring July, August, or Septem ber of that year. As a result, the court found that Burton failed to demonstrate he complied with the prison mailbox rule with respect to his mailing a ha beas petition in August 2017. It dismissed his April 2018 petition as time-barred and deni ed a COA. Followi ng appeal, this court denied Burton’s application for a COA. Burton then filed the underlying Rule 60 (b) motion for relief fro m judgment. Rule 60(b) provides that a court may relieve a part y from final judgment for reasons including mistake, newly discovered evidence, fraud, or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). When a party files a Rule 60(b) motion in a § 2254 habeas proceeding, the court must dete rmine whether the motion is a “true” Rule 60(b) motion or a second or successive habeas petition. The motion is a “true” Rule 60(b) motion if it “either (1) challenges only a procedural rulin g of the habeas cour t which precluded a merits determination of the habeas application, or (2) challenges a defect in the integrity of the federal habeas proceedin g, provided that such a ch allenge does not itself lead inextricably to a merits-bas ed attack on the disposition of a prior habeas petition.” Spitznas v. Boone , 464 F.3d 1213, 1216 (10th Cir. 2006) (citations omitted). Even if the motion is a “true” motion, a district court sh ould not grant relief under Rule 60(b) absent a showing of “extraordinary circumstances,” which “will ra rely occur in the habeas
context.” Gonzalez v. Crosby , 545 U.S. 524, 535 (2005). Burton’s Rule 60(b) motion challenged the district court’s ruling that his habeas petition was time-barred. It alleged the proc eedings were defective because the court failed to properly consider evidence supporting Bu rton’s eligibility fo r the prison mailbox4 rule. Specifically, Burton pointed to discre pancies in the prison’s mail logs, including out-of-order entries and entries logged during hours the law library was closed, to show that the prison lacked an ade quate legal mail system. To further support this claim, Burton included a statement by the prison’s mailroom officer that, “if an inmate puts legal mail inside the mailbox instead of go ing through the law library, it does not get logged in the legal log.” ROA at 144. Burton argued this statement places the prison out of compliance with state policies that require “outgoing legal mail [be] entered in a mail log and identified as legal mail.” Id . at 163. After attempting to establish the inadequacy of the legal mail system, Burton ostensibly sought to satisfy the alternative path to the prison mailbox rule by reiterating that he “placed his petition in the [non-legal] mail receptacle at the NFCC fac ility on August 28, 2017.” Id . at 156. The district court found that Burton’s motion was a “true” Rule 60(b) motion but determined there was no basis upon which to grant relief fro m judgment because Burton had not demonstrated any “e xceptional circumstances” warranting relief under Rule 60(b). Id

. at 171, 173. The court denied a C OA in the same order. Burton appeals 1 and simultaneously seeks a COA.
II. The Antiterrorism and Effective Death Penalty Act of 1996 applies to this proceeding. 28 U.S.C. § 2253(c)(1)(A). Burton must be gran ted a COA before

1 Burton initially failed to file a timely COA application and br ief, and the appeal was dismissed for failure to prosecute under 10th Cir. R. 42.1. Burton then filed a motion to reinstate the appeal under 10th Cir. R. 42.2 along with hi s COA application and brief. This court reinstated the appeal in a February 12, 2021 order.5 proceeding to the merits of his appeal. See Spitznas , 464 F.3d at 1217–18 (“If the district court correctly treated the mo tion (or any portion thereof) as a ‘true’ Rule 60(b) motion and denied it, we will require the movant to obtain a [COA] be fore proceeding with his or her appeal.”). Burton has filed a combined CO A application and brief. Aplt. Br. at 1. Pursuant to 10th Cir. R. 22.1(B), Respondent did not file a brief. A COA may only issue “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, the applicant must show “that reasonable jurist s could debate whether (or, for that matter, agree that) the petition shou ld have been resolved in a diffe rent manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “We review the district court’s denial of a Rule 60(b) motion for an abuse of discretion . . . keeping in mind that Rule 60 (b) relief is extraordin ary and may be granted only in exceptional circumstances.” Butler v. Kempthorne , 532 F.3d 1108, 1110 (10th Cir. 2008) (quotations and citations omitted ). The district cour t did not abuse its discretion when it determined the prison lega l mail system was adequate. As the court acknowledged, the discrepancies in the logs showed the system was imperfect. But they were not serious enough to render the sy stem inadequate. Neither was the mailroom officer’s statement that the prison logs mail on ly when mail is sent from the law library. Since the legal mail system was adequate, to benefit from the legal mailbox rule, Burton also had to demonstrate that he made timely use of it. Price , 420 F.3d at 1166. The district court did not abuse its discretion in concluding he failed to do so. “The fact6 remains that petitioner placed his petition in th e mail receptable at the NFCC . . . rather than taking it to the NFCC’s law library to be logg ed as outgoing legal mail through the NFCC’s established legal mailing system.” ROA at 173 (quota tions and citation omitted). Burton admits as much. After having reviewed Burton’s brief a nd the record on appeal, we conclude reasonable jurists would not debate whether th e information about the mail logs justified relief under Rule 60(b) from the court’s earlier decision denying Burton’s § 2254 petition. Accordingly, we DE NY Burton’s request for a cer tificate of appealability and DISMISS the appeal.

Entered for the Court

Allison H. Eid Circuit Judge