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 CERTIFICATE 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 district court’s order denying 

his Rule 60(b) motion. We liberally review Burton’s filings, see Hall v. Bellmon, 935 

F.2d 1106, 1110 & n.3 (10th Cir. 1991), and for the following reasons 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 sentenced 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 This order is not binding precedent except under the doctrines of law of the case, 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 Court
2 

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 petition in the district court. Respondent 

moved to dismiss the petition as time-barred, asserting the one-year 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 state prisoner’s habeas petition “will be 

considered timely if given to prison officials 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). But 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 available, 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 statement or declaration under penalty of 

perjury of the date on which the documents were given to prison authorities 

and attesting that postage was prepaid. 

Id. at 1166. If an inmate is seeking 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 available in August 2017, but that the logs did not reflect any 
3 

outgoing legal mail from Burton during July, August, or September 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 habeas petition in August 2017. It dismissed 

his April 2018 petition as time-barred and denied a COA. Following appeal, this court 

denied Burton’s application for a COA.

Burton then filed the underlying Rule 60(b) motion for relief from judgment. Rule 

60(b) provides that a court may relieve a party 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 determine 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 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 v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006) (citations omitted). Even if the 

motion is a “true” motion, a district court should not grant relief under Rule 60(b) absent 

a showing of “extraordinary circumstances,” which “will rarely 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 proceedings were defective because the court 

failed to properly consider evidence supporting Burton’s eligibility for the prison mailbox 
4 

rule. Specifically, Burton pointed to discrepancies 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 adequate 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 going 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 facility 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 from judgment because Burton 

had not demonstrated any “exceptional circumstances” warranting relief under Rule 

60(b). Id. at 171, 173. The court denied a COA in the same order. Burton appeals1

 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 granted a COA before 

1

 Burton initially failed to file a timely COA application and brief, 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 his 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 motion (or any portion thereof) as a ‘true’ Rule 60(b) motion 

and denied it, we will require the movant to obtain a [COA] before proceeding with his or 

her appeal.”). Burton has filed a combined COA 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 jurists could debate whether (or, for that matter, 

agree that) the petition should have been resolved in a different 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 extraordinary 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 court did not abuse its 

discretion when it determined the prison legal 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 system inadequate. Neither was the mailroom 

officer’s statement that the prison logs mail only 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 fact 
6 

remains that petitioner placed his petition in the mail receptable at the NFCC . . . rather 

than taking it to the NFCC’s law library to be logged as outgoing legal mail through the 

NFCC’s established legal mailing system.” ROA at 173 (quotations and citation 

omitted). Burton admits as much. 

After having reviewed Burton’s brief and the record on appeal, we conclude 

reasonable jurists would not debate whether the information about the mail logs justified 

relief under Rule 60(b) from the court’s earlier decision denying Burton’s § 2254 

petition. Accordingly, we DENY Burton’s request for a certificate of appealability and 

DISMISS the appeal. 

Entered for the Court 

Allison H. Eid 

Circuit Judge