UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JASON McKINNEY, Defendant - Appellant. No. 18-3099 (D.C. Nos. 2:06-CR -20078-JWL-1 & 2:11-CV-02062-JWL) (D. Kan.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before TYMKOVICH , Chief Judge, MATHESON and CARSON , Circuit Judges.

________________ _________________ Jason McKinney, a federal prisone r proceeding pro se, seeks a c ertificate of appealability (COA) to appeal the district court’s decision con struing his Fed. R. Civ. P. 60(b) motion as an unauthorized second or successive 28 U.S.C. § 2255 motion and dismissing it for lack of jurisdi ction. He also seeks a COA to appeal the district court’s denial of his Fed. R. Civ. P. 59( e) motion to alter or amend th e judgment, which sought reconsideration of the district court’s dismissal of his Rule 6 0(b) motion. We deny a COA as to both motions and dismiss this matter. Mr. McKinney pled guilty to one co unt of possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 84 1(a)(1) and (b)(1)(B)(iii),

* 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. FILED United States Court of Appeals Tenth Circuit 

### August 8, 2018
Elisabeth A. Shumaker Clerk of Court2 and one count of using a firearm in relation to a drug traffick ing crime in violation of 18 U.S.C. § 924(c). He was senten ced to 360 mont hs in prison o n the first count and 60 months on the second count, to be served consecutively. Mr. Mc Kinney appealed, and we affirmed the district court’ s judgment. He subsequently fil ed a § 2255 motion, which the district court denied in pa rt and dismissed in part. We de nied his application for a COA to appeal from the dist rict court’s decision. Earlier this year, Mr. McKinney f iled a Rule 60(b) motion to re open and set aside the district court’s decision on his § 2255 motion. The distri ct court concluded that the Rule 60(b) motion constituted an attempt to file a second or su ccessive § 2255 motion without prior authorization and dismissed the motion for lack o f jurisdiction. Mr. McKinney then filed a Rule 5 9(e) motion, which sought recon sideration of the district court’s dismissal of h is Rule 60(b) motion. The distr ict court denied the Rule 59(e) motion. Mr. McKinney now seeks a COA to appeal from the district court’s decisions dismissing his Rule 60( b) motion and denying his Rule 59(e) motion. In his COA application, Mr. McKi nney argues that the district c ourt erred in dismissing his Rule 60(b) motion because he asserted that he di d not have effective assistance of counsel to properl y present all of his substantiv e claims in his first § 2255 motion, which resulted in a defect in the integrity of his init ial § 2255 proceeding. To obtain a COA from the district c ourt’s procedural ruling dismis sing his Rule 60(b) motion, Mr. McKinney must show “that jurists of reason would fi nd it debatable whether the petition states a valid cla im of the denial of a constituti onal right and that jurists of3 reason would find it debatable wh ether the district court was c orrect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). A prisoner may not file a second or successive § 2255 motion un less he first obtains an order from the circuit court authorizing the distric t court to consider the motion. 28 U.S.C. § 2244(b)(3)(A); id . § 2255(h). Absent such a uthorization, a district court lacks jurisdiction to addr ess the merits of a second or s uccessive § 2255 motion. In re Cline , 531 F.3d 1249, 1251 (10t h Cir. 2008) (per curiam). A Rule 60(b) motion should be treated as a second or successive § 2255 motion “if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying conviction.” Spitznas v. Boone , 464 F.3d 1213, 1215 (10th Cir. 2006). A Rule 60(b) motion may not be t reated as a successive § 2255 mot ion if it “challenges a defect in the integrity of the federal habeas proceeding.” Id . at 1216. In his Rule 60(b) motion, Mr. McK inney argued that the legal in mate assistant who helped prepare his initial § 2255 motion failed to raise tw o claims for ineffective assistance of counsel—related t o the government’s breach of the plea agreement and an improperly calculated guidelines range—and he requested that th e district court address the merits of those claims.
In Gonzalez v. Crosby , 545 U.S. 524, 530- 31 (2005), the Supreme Court explained that a Rule 60(b) claim that a habeas petition had omitted a cl aim of constitutional error and sought leave to present that claim should be treated as a s uccessive habeas petition. See also Spitznas , 464 F.3d at 1216 (“So me examples of Rule 60(b) motions that s hould be treated as second or successi ve habeas petitions because the y assert or reassert a4 federal basis for relief from the underlying conviction include : a motion seeking to present a claim of constitutiona l error omitted from the movant ’s initial habeas petition[.]”). The Court further n oted “that an attack based o n the movant’s own conduct, or his habeas counsel’s omissi ons . . . ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably.” Gonzalez , 545 U.S. at 532 n.5. Mr. McKinney’s Rule 60(b) motion sought to present claims that were omitted from his initial § 2255 motion a nd to receive a merits determin ation on those claims; it did not attack a defect in the in tegrity of his § 2255 proceedi ngs. Reasonable jurists could not debate the district court’s procedural ruling treatin g the Rule 60(b) motion as a second or successive § 2255 mo tion and dismissing it for lack o f jurisdiction. Mr. McKinney also seeks a COA to appeal from the district court ’s denial of his Rule 59(e) motion. In his COA a pplication, Mr. McKinney argues that the district court denied his Rule 59(e) motion based on an erroneous assessment o f the law by making its ruling pursuant to an unsettled matter in United States v. Gantt , 2018 WL 447733, at *3 (D. Kan. Jan. 17, 2018), that ha s now been stricken from that c ourt’s record as of June 1, 2018. Mr. McKinney then makes the seemingly contradictory asse rtion that “it is not clear from the record o n how the court constituted the grounds of its actions, and therefore its action does not pr ovide an adequate basis for app ellate review.” COA App. at 11. In his Rule 59(e) motion, Mr. McK inney argued that his Rule 60( b) motion should be treated as a true Rule 60(b ) motion, not a successive § 2255 motion. In support of his5 argument, he explained that his m otion should be construed as a Rule 60(b) motion because he presented a claim that a defect occurred in his init ial § 2255 proceeding when he informed the court “that he h ad no counsel to present his su bstantive claim.” R. at 175. In denying the Rule 59(e ) motion, the court cited to Gantt for the proposition that the “absence of counsel during a habeas proceeding is not a ‘de fect’ in that proceeding for purposes of construing [a] Ru le 60(b) motion as a ‘true’ Ru le 60(b) motion.” R. at 183. Mr. McKinney has presente d no evidence that the Gantt decision has been stricken from the record. 1 He has also failed to show that the Gantt decision is contrary to other binding legal authority, or that the court’s reasoning is insuf ficient for appellate review. Reasonable jurists could not deba te the district court’s decisi on to deny the Rule 59(e) motion. For the foregoing reasons, we de ny a COA from the district cour t’s decisions on both motions and dismiss this matter.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

1 We also take judicial notice of the docket in United States v. Gantt , 6:10-CR-10175-EFM (D. Kan), whic h reflects that the Memorandum & Order issued January 17, 2018, remains on the docket and part of the record. The docket reflects that an order did enter on June 1, 20 18, but that order struck the d efendant’s pro se reply, not the district court’s Memorandum & Order.