UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ ROBERT D. CARTER, Petitioner - Appellant,

v. DEON CLAYTON, Warden, Respondent - Appellee. No. 22-7031 (D.C. No. 6:19-CV -00243-RAW-KEW) (E.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

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

________________ _________________ Robert Carter, a state pr isoner proceeding pro se, 1 seeks a certificate of appealability (COA) to appeal an order denying hi s motion under Federal Rule of Civil Procedure 60(b)(1) to set asid e a judgment dismissing his 28 U.S.C. § 22 54 petition as untimely. For the reasons below, we deny Carter’s request and dismiss this matter. Background Carter filed his § 2254 petition in July 2019, asserting various constitutional challenges to his Oklahoma convictions for possessing child po rnography. The State

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 “Because [Carter] is pro se, we liberally construe his filings, but we will not act as his advocate.” James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). FILED United States Court of Appeals Tenth Circuit 

### October 25, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-7031 Document: 010110757937 Date Filed: 10/25/2022 Page: 12 moved to dismiss the petition as untimely, argui ng that Carter filed it more than one year after his convictions became final in February 2016. See 28 U.S.C. § 2241(d)(1). The district court agreed. So in late November 2020, it dismissed the petition, declined to issue a COA, and entered judgment for the St ate. Carter then moved for reconsideration under Federal Rule of Civil Procedure 59(e); the district court denied that motion in August 2021. Carter then made his first trip to this c ourt, seeking a COA to challenge the district court’s ruling that the one-year statute of limitations barred his petition. See 28 U.S.C. § 2253(c)(1)(A). Earlier this year, we denied Carter’s COA request and dismissed the

case. Carter v. Clayton , No. 21-7049, 2022 WL 484033, at *1 (10th Cir. Feb. 17, 2022). In doing so, we rejected Carter’s argument —renewed from the district court—that his petition was timely under § 2241(d)(1)(B) and (D) because he f iled it within one year of a state prosecutor belatedly disc losing police reports that reve aled the factual basis for a Fourth Amendment claim a sserted in his petition. See id. at *1, *3–4. In June 2022, Carter reasserted that ar gument in a Rule 60(b)(1) motion asking the district court to set aside its November 20 20 dismissal order. The di strict court denied Carter’s motion as untimely afte r determining that he did not file it within “a year after the entry of the judgment,” as requi red by Rule 60(c)(1). Carter appeals. Appellate Case: 22-7031 Document: 010110757937 Date Filed: 10/25/2022 Page: 23 Analysis In his second trip to this court, Carter requests a COA to appeal the order denying his Rule 60(b)(1) motion. 2 We may grant that request only if Carter shows that reasonable jurists could debate both (1) the validity of the underlying constitutional claims asserted in his habeas petition and (2) the district court’s procedural ruling denying his Rule 60(b)(1) motion to set aside the judg ment dismissing his petition. See Slack v. McDaniel , 529 U.S. 473, 484 (2000); Buck v. Davis , 137 S. Ct. 759, 775 (2017) (applying Slack standard to habeas petitioner’s Rule 60(b) motion). We need not address the constitutional question if we conclude that reasonable ju rists would not debate the district court’s procedural ruling. Slack , 529 U.S. at 485. Carter argues that reasonable jurists c ould disagree with the district court’s procedural ruling because the district court based it on a mistaken view that the Rule 60(b)(1) motion was untimely. See Fed. R. Civ. P. 60(c)(1) (re quiring parties to file Rule 60(b)(1) motions “no more than a year after the entry of the judgment or order or the date of the proceeding”). Specifically, he contends that the one-year dead line for filing such a motion began not when the district court first entered judgment in N ovember 2020 (as the district court concluded), but when it denied his Rule 59(e) reconsideration motion in

2 Our precedents require a COA to appeal an order denying a Ru le 60(b) motion in a habeas case. Spitnas v. Boone , 464 F.3d 1213, 1217–18 (1 0th Cir. 2006). Initially, the district court did not consider whether to grant a COA, so when Carter appealed, we abated the appeal and remande d for consideration of that issue. The district court ultimately declined to issu e a COA, and we have since lifted the abatement. Appellate Case: 22-7031 Document: 010110757937 Date Filed: 10/25/2022 Page: 34 August 2021. As a result, Ca rter says, his Rule 60(b)(1) motion was timely because he filed it in June 2022—more than two months before th e August 2022 deadline. But even if the district court’s Rule 60( b) timeliness analysis is debatable, as Carter suggests, its ultimate decision to deny his Rule 60(b)(1) motion is not. See Davis v. Roberts , 425 F.3d 830, 834 (10th Cir. 2005) (noting our disc retion to deny COA on any ground supported by the record). In the motion, Carter mentioned no “mistake, inadvertence, or excusable neglect” that w ould support setting aside the district court’s decision to dismiss his § 2254 petition on statut e-of-limitations grounds . Fed. R. Civ. P. 60(b)(1). Instead, he simply reas serted an argument the dist rict court rejected in its dismissal order—that he timely filed the petiti on within one year of receiving the police reports that revealed the factual ba sis for his Fourth Amendment claim. 3 Because “Rule 60(b) relief is not available to allow a party me rely to reargue issues previously addressed [by] the court,” the district court here could not have granted Carter’s motion even if he filed it on time. Allender v. Raytheon Aircraft Co. , 439 F.3d 1236, 1242 (10th Cir. 2006); see also Van Skiver v. United States , 952 F.2d 1241, 1244 (10t h Cir. 1991) (explaining that Rule 60(b) relief is ina ppropriate when motion “reiterate[s] the original issues” or “argu[es] that the district court misapplie d the law or misunderstood [a party’s] position”). For this reason, no reasonable jurist could debate the dist rict court’s decision to deny Carter’s Rule 60(b)(1) motion, whether or not Carter timely filed it.

3 The motion also repeated a related argu ment, which the district court likewise rejected in its earlier dismissal order, that th e statute of limitations should be equitably tolled based on the state prosecutor’s purpor ted failure to timely disclose the police reports. Appellate Case: 22-7031 Document: 010110757937 Date Filed: 10/25/2022 Page: 45 Conclusion Because Carter fails to show that reas onable jurists could debate the district court’s procedural ruling, we deny hi s COA request and dismiss this appeal. See Slack , 529 U.S. at 484.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 22-7031 Document: 010110757937 Date Filed: 10/25/2022 Page: 5