UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. OVEX GOMEZ-ALVAREZ, Defendant - Appellant. No. 13-3275 (D.C. Nos. 2:11-CR-20011-CM-1 & 2:13-CV-02067-CM) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before KELLY , LUCERO , and O’BRIEN , Circuit Judges.

Ovex Gomez-Alvarez, a federal prisoner proceeding pro se, seeks a certificate of appealability (COA) to appeal the dist rict court’s denial of his motion under 28 U.S.C. § 2255 and its handling of hi s subsequent “Motion to Reconsider Memorandum and Order.” Because Mr. Gomez- Alvarez did not timely file his notice of appeal from the denial of his § 2255 motion, we lack jurisdiction to review that decision. Regarding the “Motion to Reco nsider Memorandum and Order,” we deny a COA and dismiss the appeal.

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and colla teral estoppel.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 

### February 7, 2014 Elisabeth A. Shumaker Clerk of Court- 2 - Mr. Gomez-Alvarez pleaded guilty to one count of illegal re-entry into the United States after removal fo r a conviction of an aggravat ed felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He filed a timely § 2255 motion to vacate, set aside, or correct his sentence, which the district court denied on July 29, 2013. A separate judgment was entered on July 30. On August 29, Mr. Gomez-Alvarez deposit ed into the prison mail system his “Motion to Reconsider Memorandum and Orde r,” in which he addressed points made in the denial order and re-ar gued assertions made in his § 2255 motion. Applying the guidelines this court set forth in Spitznas v. Boone , 464 F.3d 1213, 1216-17 (10th Cir. 2006), on October 15, the dist rict court construed some portions of the motion to reconsider as a second § 22 55 motion and other portions as a motion under either Fed. R. Civ. P. 59(e) or 60( b). It dismissed those portions that were an unauthorized second § 2255 motion. See In re Cline , 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam). It denied those portions th at arguably fell under Rules 59(e) or 60(b), see Spitznas , 464 F.3d at 1217, and in the alternativ e, to the extent that those portions instead might be considered a second § 2255 motion, it dismissed them. On October 28, Mr. Gomez-Alva rez deposited a notice of a ppeal in the prison mail system. Before this court, Mr. Gomez-Alva rez appears to be challenging both the denial of his § 2255 motion and the denial of his motion to reconsider. This court does not have jurisdiction to consider th e denial of the § 2255 motion, however,- 3 - because Mr. Gomez-Alvarez did not tim ely appeal from that decision. See Bowles v. Russell , 551 U.S. 205, 214 (2007) (“[T]he timely filin g of a notice of appeal in a civil case is a jurisdictiona l requirement.”). Under Fed. R. App. P. 4(a)(1)(B), he had 60 days from the entry of judgment to appeal from the denial of the § 2255 motion. The July 30 judgment made his deadline Monday, September 30 (extended from the sixtieth day, which fell on Saturday, September 28). But he did not deposit his notice of appeal in the prison mail system until October 28. Under Fed. R. App. P. 4(a)(4)(A), th e 60-day appeal peri od could be tolled by the filing of a motion under Rules 59(e) or 60(b) within 28 days of the entry of judgment (so, in this case, by August 27). But Mr. Gomez- Alvarez’s motion to reconsider was deposited in th e prison mail system on Augu st 29, thirty days after judgment. Therefore, the motion to recons ider did not toll the September 30 appeal deadline, and the October 28 notice of appeal was untimely as to the denial of the § 2255 motion. In contrast, the notice of appeal was ti mely filed with regard to the district court’s decision on the motion to recons ider. To appeal that decision, Mr. Gomez-Alvarez must secure a COA, requiring him to s how “that jurists of reason would find it debatable whethe r the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the- 4 - district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Jurists of reason would not find it deba table whether the district court was correct in its procedural rulings. The dist rict court employed the procedures set forth by this court to determine whether it had jurisdiction to decide any of the issues presented by the “Motion to Reconsider Memorandum and Order.” The portions of the filing that attacked th e validity of Mr. Gomez-Alva rez’s sentence and re-argued claims he had made prev iously under § 2255 inargua bly were subject to the restrictions on second or successive § 2255 motions. See Gonzalez v. Crosby , 545 U.S. 524, 531-32 (2005); United States v. Nelson , 465 F.3d 1145, 1148-49 (10th Cir. 2006). Accordingly, the district court lacked ju risdiction to consider those portions of the filing, and no reasonable jurist could deba te the decision to dismiss them. See Cline , 531 F.3d at 1251-52. Further, the portions of the filing that arguably attacked the validity of the § 2255 proceeding were meritless. No reasonable jurist could debate the decision to deny those portions of the filing or, in the alternative, to dismiss them. Mr. Gomez-Alvarez’s motion for leave to proceed wit hout prepayment of fees and costs is granted. The app lication for COA is denied, and this matter is dismissed. Entered for the Court

ELISABETH A. SHUMAKER, Clerk