UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ STEPHEN E. MCCOY, Petitioner - Appellant,

v. R. BYRD, Warden, CCF, Respondent - Appellee. No. 17-6032 (D.C. No. 5:15- CV-01376-R) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Stephen McCoy, a state prisoner proceed ing pro se, seeks a certificate of appealability (“COA”) to app eal the district court’s deni al of his 28 U.S.C. § 2254 habeas petition and his Rule 60(b) motion. We deny a COA and dismiss the appeal.
I In 2013, McCoy was convicted of conspi racy to commit a felony, robbery with a dangerous weapon, and kidnapping. Hi s convictions were affirmed on direct appeal. McCoy subsequently so ught habeas relief in federal court. The district court dismissed the petition as untim ely. Several months late r, McCoy submitted a motion

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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

### May 23, 2017
Elisabeth A. Shumaker Clerk of Court2 to reopen the case under Fed. R. Civ. P. 60(b). The district court de nied that motion. McCoy now seeks a C OA from this court.
II As an initial matter, McC oy failed to seek timely appe llate review of the denial of his habeas petition. Under Fed. R. A pp. P. 4(a)(1)(A), a de fendant must file a notice of appeal within thirty days of th e entry of judgment. The district court dismissed McCoy’s habeas pe tition and entered final judg ment on April 18, 2016. McCoy took no further action un til July 8, 2016, when he f iled a Rule 60(b) motion. Because that motion was file d more than 28 days after the district court entered judgment, it did not toll the time to file a notice of appeal. See Fed. R. App. P. 4(a)(4)(A)(vi). Accordingly, McCoy’s no tice of appeal, which was filed on January 30, 2017, is untimely as to th e denial of his habeas petiti on, and we lack jurisdiction to review that order. See United States v. Ceballos-Martinez , 387 F.3d 1140, 1143 (10th Cir. 2004). McCoy’s notice of appeal is timely as to the denial of his Rule 60(b) motion. 1 However, he may not appeal that order without a COA. Spitznas, 464 F.3d at 1217- 18. We will issue a COA only if McCoy sh ows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and . . . whether the dist rict court was correct in its procedural ruling.” Id. at

1 Although the district court did not ma ke an express finding, we conclude it properly treated McCoy’s motion as a “true” Rule 60(b) motion, rather than a second or successive habeas petition. The motion “challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application.” Spitznas v. Boone, 464 F.3d 12 13, 1215-16 (10th Cir. 2006).3 1225 (quoting Slack v. McDaniel, 529 U.S. 47 3, 484 (2000)). “We review a district court’s denial of a Rule 60(b) motion for an abuse of discreti on.” Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1248 ( 10th Cir. 2007) (quotation omitted). In his initial habeas petition, McCoy ar gued that he was entitled to equitable tolling because the prison was on lockdown several times in 2015. The district court rejected McCoy’s argument because he failed to show how he d iligently pursued his claims in the six months between the date when his conviction became final and the date of the first lockdown, or between the various lockdo wn periods. See Miller v. Marr, 141 F.3d 976, 978 (10t h Cir. 1998). In his Ru le 60(b) motion, McCoy provided details to support his claim for e quitable tolling. However, Rule 60(b) is not an appropriate vehicle “to reargue an issue previo usly addressed by the court when the motion merely advances new ar guments, or supporting facts which were available at the time of the original motion. ” Servants of Paracl ete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). McCoy does not provide any reason for his failure to offer this evidence in his or iginal habeas petition. Thus , reasonable jurists could not debate that the district court acted with in its discretion in denying McCoy’s Rule 60(b) motion.4 III For the foregoing reasons, we DENY a COA and DISMISS the appeal. McCoy’s motion to proceed in forma pauperis is GRANTED

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Entered for the Court

Carlos F. Lucero Circuit Judge