UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ANDREW JOHN YELLOWBEAR, JR., 

 Petitioner - Appellant. 

v. 

BRIDGET HILL, 

 Respondent - Appellee. 

No. 20-8071 

(D.C. No. 0:20-CV-00218-NDF) 

(D. Wyo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before HOLMES, EID, and CARSON, Circuit Judges. 

_________________________________ 

Andrew John Yellowbear, Jr. seeks to appeal from the district court’s dismissal of 

his Federal Rule of Civil Procedure 60(b) motion as an unauthorized second or 

successive 28 U.S.C. § 2254 habeas petition. Construing his notice of appeal as an 

application for a certificate of appealability (“COA”), we deny his application and 

dismiss this appeal.1

 

*

 This order is not binding precedent except under the doctrines of law of the case, 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. 

1

 Mr. Yellowbear filed an opening brief, but he did not file an application for 

a COA. In such cases, we treat the notice of appeal as a request for a COA. See

Fed. R. App. P. 22(b)(2) (“If no express request for a [COA] is filed, the notice of appeal 

constitutes a request addressed to the judges of the court of appeals.”); Frost v. Pryor, 

749 F.3d 1212, 1222 n.6 (10th Cir. 2014) (construing notice of appeal as a request for a 

COA). 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 9, 2021

Christopher M. Wolpert 

Clerk of Court
2 

I. Background 

Mr. Yellowbear was charged with first-degree murder following the death of his 

22-month-old daughter. During his trial in Wyoming state court, he filed a petition for 

habeas corpus relief pursuant to 28 U.S.C. § 2241, arguing that the crime scene was in 

“Indian Country,” and the state courts, therefore, lacked jurisdiction over his crime. At 

the conclusion of the trial, Mr. Yellowbear was convicted and sentenced to life in prison. 

 Shortly thereafter, the district court entered an order denying the § 2241 petition. 

We reversed the denial of the § 2241 petition and remanded to the district court. 

Following remand, Mr. Yellowbear recharacterized his petition as one being brought 

pursuant to § 2254. He later voluntarily dismissed two claims. The remaining claim 

challenged the Wyoming Supreme Court’s determination that the crime scene was not in 

Indian Country. The district court denied the petition, and we affirmed the district court’s 

decision. The Supreme Court denied Mr. Yellowbear’s petition for a writ of certiorari. 

Mr. Yellowbear later filed a motion seeking relief under Federal Rule of Civil 

Procedure 60(b). His motion again challenged the jurisdiction of the Wyoming state 

court in which he was convicted. Because the motion challenged the legality of his 

conviction—not a defect in the habeas proceeding itself—the district court construed the 

Rule 60(b) motion as an unauthorized second or successive § 2254 habeas petition and 

denied it. This court denied Mr. Yellowbear’s request for a COA. 

Mr. Yellowbear subsequently filed an “independent action” under Federal Rule of 

Civil Procedure 60(d)(1) in which he presented another Rule 60(b) motion. Aplt. App. 

at 4. He sought an order from the district court vacating the judgment finding him guilty 
3 

of murder because “the State of Wyoming did not have jurisdiction over the situs of the 

alleged crime for which he was convicted.” Id. The district court determined that 

Mr. Yellowbear’s motion was “advancing a merits-based attack on the disposition of his 

§ 2254 petition, both by the habeas court and the Tenth Circuit.” Id. at 64-65. It 

explained that this was “not permitted and may only be advanced by prior authorization 

to file a second or successive petition.” Id. at 65. Because Mr. Yellowbear had not 

obtained authorization to file a second or successive § 2254 habeas petition, the district 

court dismissed the motion for lack of jurisdiction. The district court also denied a COA. 

Mr. Yellowbear now seeks to appeal from the district court’s dismissal order. 

II. Discussion 

To appeal from a “final order in a habeas proceeding,” Mr. Yellowbear must 

obtain a COA. 28 U.S.C. § 2253(c)(1)(A). The district court’s dismissal of 

Mr. Yellowbear’s unauthorized § 2254 habeas petition is a final order in a habeas 

proceeding such that § 2253 requires him to obtain a COA before he may appeal. 

Cf. United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008) (holding that “the 

dismissal of an unauthorized § 2255 motion is a final order in a proceeding under section 

2255 such that § 2253 requires petitioner to obtain a COA before he or she may appeal” 

(internal quotation marks omitted)). To obtain a COA from the district court’s procedural 

ruling, Mr. Yellowbear must show both “that jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right and that 

jurists of reason would find it debatable whether the district court was correct in its 

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this case, the latter 
4 

part of the test is determinative: no reasonable jurist could debate the district court’s 

procedural decision to dismiss the Rule 60(b) motion for lack of jurisdiction. 

A prisoner may not file a second or successive § 2254 habeas petition unless he 

first receives authorization from the court of appeals. 28 U.S.C. § 2244(b)(3)(A). In the 

absence of such authorization, a district court lacks jurisdiction to address the merits of a 

second or successive § 2254 habeas petition. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 

2008) (per curiam). A Rule 60(b) motion should be treated as a second or successive 

§ 2254 habeas petition “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 should not be treated as a second or 

successive § 2254 petition if it “challenges only a procedural ruling of the habeas court 

which precluded a merits determination of the habeas application . . . or challenges a 

defect in the integrity of the federal habeas proceeding . . . .” Id. at 1216. 

In his Rule 60(b) motion, Mr. Yellowbear asserted that he was challenging a 

“jurisdictional ruling,” which he contended should be exempt from the restrictions on 

federal review of his Wyoming state conviction. Aplt. App. at 6-7. He brought the 

following four grounds for relief: 1) the district court employed the wrong standard of 

review when considering his first § 2254 habeas petition; 2) this court erred in concluding 

it could not review certain claims because they were not exhausted when it affirmed the 

denial of his first § 2254 habeas petition; 3) issue preclusion applied to Mr. Yellowbear’s 

claim of lack of jurisdiction and the site of the crime was a former allotment and thus 

retained its character as Indian Country; and 4) this court was wrong in Wyoming v. 
5 

United States Environmental Protection Agency, 875 F.3d 505, 509-10 (10th Cir. 2017), 

when it concluded that Congress diminished the boundaries of the Wind River 

Reservation in Wyoming in 1905 and vacated the Environmental Protection Agency’s 

decision, which had reached the opposite conclusion. 

The district court determined that these contentions did not challenge a defect in 

the integrity of Mr. Yellowbear’s habeas proceeding, but instead “reassert[ed] a federal 

basis for relief from his underlying conviction (i.e., that the state district court lacked 

jurisdiction because the crime scene was in Indian Country).” Aplt. App. at 60. 

It therefore concluded that Mr. Yellowbear’s Rule 60(b) motion “must be treated as 

an unauthorized second or successive § 2254 claim over which this court lacks 

jurisdiction.” Id. 

In his brief, Mr. Yellowbear argues that the district court erred in characterizing 

his Rule 60(b) motion as a successive § 2254 habeas petition. He asserts that “[t]he 

motion below was solely a challenge to a jurisdictional ruling and not to a normal, 

substantive claim of legal or factual error,” and should be “exempt from the purview of 

28 U.S.C. § 2254 restrictions on federal review of Mr. Yellowbear’s Wyoming state 

conviction.” Aplt. Br. at 7-8. But Mr. Yellowbear provides no legal authority to support 

the proposition that challenges to jurisdiction are treated differently than other 

substantive claims of legal or factual error when determining whether a motion is 

asserting a second or successive § 2254 claim. And we have held to the contrary with 

respect to a federal prisoner’s Rule 60(b) motion that raised jurisdictional challenges to 

his conviction and sentence. See Cline, 531 F.3d at 1253 (concluding that district court 
6 

properly treated jurisdictional challenges in Rule 60(b) motion as unauthorized second or 

successive § 2255 claims “because they all substantively challenge the constitutionality 

of [the movant’s] conviction and detention, and are effectively indistinguishable from 

habeas claims” (internal quotation marks omitted)). 

Mr. Yellowbear also contends that his Rule 60(b) motion “challenge[d] only a 

procedural ruling of the habeas courts in prior litigation which precluded a merits 

determination of whether jurisdiction was defective in the state court which tried [him].” 

Aplt. Br. at 7 (internal quotation marks omitted). This appears to relate to his contention 

in his Rule 60(b) motion that “the application of an improper standard of review in a 

habeas proceeding constitutes . . . a procedural ruling that affected [his] due process 

rights and foreclosed a proper merits determination . . . .” Aplt. App. at 6. But he 

provided no authority for this contention in his Rule 60(b) motion. And, as the district 

court noted, Mr. Yellowbear’s “contention that [his] claims were improperly adjudged 

using a deferential standard of review . . . does not challenge a procedural ruling that 

precluded a merits determination.” Id. at 64. Instead, the district court explained that 

“[t]here was a merits determination on [his] § 2254 petition” that “included this very 

issue.” Id. 

In his first habeas proceeding, the district court rejected Mr. Yellowbear’s 

argument that his jurisdictional claim should be reviewed de novo instead of under the 

more deferential standard of review in § 2254(d)(1), and then proceeded to deny his 

habeas petition on the merits. See Yellowbear v. Wyo. Att’y Gen., 636 F. Supp. 2d 1254, 

1258, 1259, 1272 (D. Wyo. 2009). We affirmed the district court’s disposition, 
7 

Yellowbear v. Att’y Gen. of Wyo., 380 F. App’x 740, 740 (10th. Cir. 2010), and the 

Supreme Court denied certiorari, Yellowbear v. Salzburg, 131 S. Ct. 1488 (2011). As we 

explained in Spitznas, “a 60(b) motion is a second or successive petition if it in substance 

or effect asserts or reasserts a federal basis for relief from the petitioner’s underlying 

conviction.” 464 F.3d at 1215. The district court therefore correctly determined that 

Mr. Yellowbear’s Rule 60(b) motion, which reasserted his disagreement with the habeas 

court about the standard of review for considering his jurisdictional claim, constituted “a 

merits-based attack on the disposition of his § 2254 petition” and “may only be advanced 

by prior authorization to file a second or successive petition.” Aplt. App. at 64-65. 

The remaining propositions in Mr. Yellowbear’s opening brief raise the same or 

similar merits-based attacks on his conviction as those presented in his Rule 60(b) 

motion, and do not address the district court’s procedural ruling dismissing that motion 

for lack of jurisdiction as an unauthorized second or successive § 2254 habeas petition. 

We therefore decline to address those arguments as they do not relate to the only issue 

before us. 

Finally, the fact that Mr. Yellowbear presented his Rule 60(b) motion in a 

pleading styled as an independent action under Rule 60(d)(1), does not change the 

analysis we use to determine if his pleading is an unauthorized second or successive 

§ 2254 habeas petition. See United States v. Baker, 718 F.3d 1204, 1205-06, 1208 

(10th Cir. 2013) (denying a COA from the dismissal of a Rule 60(d)(3) motion, which the 

district court construed as an unauthorized second or successive § 2255 motion, and 

explaining that “we look at the relief sought, rather than a pleading’s title or its form, to 
8 

determine whether it is a second-or-successive collateral attack on a defendant’s 

conviction”). Here, the relief Mr. Yellowbear sought was an order from the district court 

vacating the judgment finding him guilty of murder because “the State of Wyoming did 

not have jurisdiction over the situs of the alleged crime for which he was convicted.” 

Aplt. App. at 4. The district court properly characterized Mr. Yellowbear’s pleading as a 

second or successive collateral attack on his conviction. 

III. Conclusion 

Reasonable jurists would not find debatable the district court’s procedural ruling 

that it lacked jurisdiction over Mr. Yellowbear’s motion because it was an unauthorized 

second or successive § 2254 habeas petition. We therefore deny a COA and dismiss this 

appeal. We also deny Mr. Yellowbear’s “Motion to Take Judicial Notice of Attached 

Documents.” 

Entered for the Court 

CHRISTOPHER M. WOLPERT, Clerk