UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JESUS ADOLFO TINAJERO-PORRAS, 

 Defendant - Appellant. 

No. 16-6253 

(D.C. Nos. 5:16-CV-00890-R & 

5:06-CR-00115-R-1) 

(W.D. Okla.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges. 

 

 Jesus Adolfo Tinajero-Porras was convicted of charges arising from a 

conspiracy to possess with intent to distribute cocaine and marijuana. After an 

unsuccessful appeal, Tinajero-Porras filed a motion for relief under 28 U.S.C. 

§ 2255, which the district court denied. Nearly seven years later, Tinajero-Porras 

filed a “motion for relief . . . pursuant to [Fed. R. Civ. P.] 60(b).” R. Vol. 1 at 46. 

The district court construed the motion as an unauthorized successive § 2255 motion 

and dismissed it for lack of jurisdiction. Tinajero-Porras requests a certificate of 

 

* This order is not binding precedent except under the doctrines of law of the 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

FILED 

United States Court of Appeals 

Tenth Circuit 

November 8, 2016

Elisabeth A. Shumaker 

Clerk of Court
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appealability (COA). For the following reasons, we deny his request and dismiss this 

matter. 

Tinajero-Porras must obtain a COA before he can appeal the dismissal of an 

unauthorized successive § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B). The district 

court disposed of Tinajero-Porras’ motion on procedural grounds, so in order to 

obtain a COA Tinajero-Porras must show that jurists of reason would find it 

debatable whether the district court’s procedural ruling was correct. Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). A court should construe a motion for relief 

under Fed. R. Civ. P. 60(b) as a second or successive § 2255 motion if it seeks to add 

a new claim, which includes attacking the “court’s previous resolution of a claim on 

the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (emphasis omitted). 

“Conversely, . . . a ‘true’ 60(b) motion . . . either (1) challenges only a procedural 

ruling of the habeas court which precluded a merits determination of the habeas 

application; or (2) challenges a defect in the integrity of the federal habeas 

proceeding.” Spitznas v. Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006) (citations 

omitted). 

Tinajero-Porras argues his motion for relief under Fed. R. Civ. P. 60(b) was a 

“true” 60(b) motion. According to Tinajero-Porras, he did not seek to add a new 

claim or attack the district court’s resolution of his prior § 2255 motion on the merits, 

but instead asked the court to rule on a claim in his original § 2255 motion that it had 

failed to address. There are two problems with this argument. First, the district court 
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specifically rejected the claim Tinajero-Porras argues it missed—that his attorney 

was ineffective for failing to object to statements in the presentence report—in its 

September 15, 2009, order. See United States v. Tinajero-Porras, No. CR-06-115-R, 

Order at 4 (W.D. Okla. Sept. 15, 2009). Second, much of Tinajero-Porras’ 60(b) 

motion is devoted to rearguing the merits of his ineffective assistance claim. The 

district court therefore properly construed it as an unauthorized successive § 2255 

motion. Because reasonable jurists could not debate this procedural ruling, we deny 

Tinajero-Porras’ request for a COA. 

 We grant Tinajero-Porras’ motion to proceed on appeal without prepayment of 

costs or fees. But because 28 U.S.C. § 1915(a)(1) allows us to excuse only 

prepayment of fees, he remains obligated to pay all filing and docketing fees to the 

clerk of the district court. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk