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 CERTIFIC ATE 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 ha beas 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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) (constr uing 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 Court2 I. Background Mr. Yellowbear was charged with first-degr ee murder following the death of his 22-month-old daughter. During his trial in Wy oming 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 wa s convicted and sentenced to life in prison. Shortly thereafter, the district court ente red an order denying the § 2241 petition. We reversed the denial of the § 2241 petition and remanded to the di strict court. Following remand, Mr. Yellowbear recharact erized his petition as one being brought pursuant to § 2254. He later voluntarily dismissed two claims. The remaining claim challenged the Wyoming Supreme Court’s determ ination that the crime scene was not in Indian Country. The district court denied th e petition, and we affirmed the district court’s decision. The Supreme Court denied Mr. Ye llowbear’s petition for a writ of certiorari. Mr. Yellowbear later filed a motion seek ing relief under Federal Rule of Civil Procedure 60(b). His motion again challeng ed the jurisdiction of the Wyoming state court in which he was convicted. Becaus e the motion challenged the legality of his conviction—not a defect in the habeas procee ding itself—the district court construed the Rule 60(b) motion as an unau thorized second or successive § 2254 habeas petition and denied it. This court denied M r. Yellowbear’s request for a COA. Mr. Yellowbear subsequently filed an “inde pendent action” under Federal Rule of Civil Procedure 60(d)(1) in which he presente d another Rule 60(b) motion. Aplt. App. at 4. He sought an order from the district court vacating the judgment finding him guilty3 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 mer its-based attack on th e 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 ma y 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 jurisdicti on. 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 Ci r. 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 ob tain 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 “tha t jurists of reason would find it debatable whether the petition states a valid claim of th e denial of a constitutional right and that jurists of reason would find it debatable whet her the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). In this case, the latter4 part of the test is determinative: no reason able 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 su ccessive § 2254 hab eas petition unless he first receives authorization from the court of a ppeals. 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 s ubstance 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) moti on 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 fe deral habeas proceeding . . . .” Id. at 1216. In his Rule 60(b) motion, Mr. Yellowbe ar asserted that he was challenging a “jurisdictional ruling,” which he contended should be exem pt from the restrictions on federal review of his Wyoming state convicti on. Aplt. App. at 6-7. He brought the following four grounds for relief: 1) the district court em ployed the wrong standard of review when considering his fi rst § 2254 habeas petition; 2) th is court erred in concluding it could not review certain claims because th ey were not exhausted when it affirmed the denial of his first § 2254 habeas petition; 3) issue prec lusion 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 Count ry; 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 diminish ed the boundaries of the Wind River Reservation in Wyoming in 1905 and vacate d the Environmental Protection Agency’s decision, which had reached th e opposite conclusion. The district court determined that these contentions did not challenge a defect in the integrity of Mr. Yellowbear’s habeas proc eeding, 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 th e 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 jurisdic tional 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. Yello wbear provides no legal authority to support the proposition that challenges to jurisdic tion are treated differently than other substantive claims of legal or factual e rror 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) mo tion that raised jurisdictional challenges to his conviction and sentence. See Cline , 531 F.3d at 1253 (concluding that district court6 properly treated jurisdictional challenges in Rule 60(b) motion as un authorized 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 litig ation which prec luded a merits determination of whether jurisdiction was defec tive 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 applicatio n of an improper standard of review in a habeas proceeding constitutes . . . a procedur al ruling that affected [his] due process rights and foreclosed a proper merits determin ation . . . .” Aplt. App. at 6. But he provided no author ity for this contention in his Rule 60(b) motion. And, as the district court noted, Mr. Yellowbear’s “contention th at [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 di strict 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 affi rmed 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 su ccessive 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 correc tly determined that Mr. Yellowbear’s Rule 60(b) mo tion, which reasserted his di sagreement with the habeas court about the standard of review for cons idering his jurisdictional claim, constituted “a merits-based attack on the disp osition 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. Yellowb ear’s opening brief raise the same or similar merits-based attacks on his conviction as those pr esented in his Rule 60(b) motion, and do not address the district cour t’s procedural ruling dismissing that motion for lack of jurisdiction as an unauthorized second or succe ssive § 2254 habeas petition. We therefore decline to address those argument s 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), do es 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 dism issal 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, ra ther than a pleading’s title or its form, to8 determine whether it is a second-or-succe ssive collateral attack on a defendant’s conviction”). Here, the relief Mr. Yellowbear s ought 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 proper ly 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 ov er Mr. Yellowbear’s motion beca use 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 “Mo tion to Take Judicial Notice of Attached Documents.”

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk