UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. VERDALE HANDY, Defendant - Appellant. No. 18-3086 (D.C. Nos. 2:16-CV-02724-CM and 2:09-CR-20046-CM-8) (D. Kansas)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , HARTZ, and McHUGH , Circuit Judges.

Verdale Handy, a federal prisoner appearing pro se, 1 seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his motion seeking relief from a final judgment under Fed eral Rule of Civil Procedure 60( b)(4). Because Mr. Handy has failed to make “a s ubstantial showing of the deni al of a constitutional right,” see 28 U.S.C. § 2253(c)(2), we deny his request and dismiss the ap peal.

* This order is not binding preced ent, except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, however , for its persuasive value consistent with Federal Rule of A ppellate Procedure 32.1 and 10 th Circuit Rule 32.1.

1 Because Mr. Handy is pro se, “we liberally construe his filing s, but we will not act as his advocate.” James v. Wadas , 724 F.3d 1312, 131 5 (10th Cir. 2013). FILED United States Court of Appeals Tenth Circuit 

### July 18, 2018
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Mr. Handy is serving a life sent ence in federal prison. He was convicted in 2010 of multiple drug trafficking offe nses, attempted murder, and po ssession and use of a firearm during a crime of violen ce. We affirmed his convictions and sentence on direct appeal. United States v. Handy , 505 F. App’x 682 ( 10th Cir. 2012) (“ Handy I ”). After unsuccessfully petitioning the S upreme Court for a writ of cert iorari, see Handy v. United
States , 569 U.S. 1011 (2013) , Mr. Handy has since filed a succession of pro se motions and appeals seeking to reopen his case. First, he brought a 28 U.S.C. § 2255 motion claiming that his c ounsel provided ineffective assistance of counsel on direct appeal for failing to argue that certain coconspirator statements should not have been admitted at trial. He asserted that evidence presented at his James hearing 2 did not establish the exis tence of a conspiracy, and he faulted his counsel for failing to argue that Pamela Bennett, a Kansas City police detective, lied when testifying at that hearing. The district c ourt denied relief and declined to issue a C OA. Mr. Handy renewed his request for a CO A in this court, but we too denied a COA, concluding reas onable jurists would not debat e the district court’s conclusion and dismissing Mr. Handy’s appeal. United States v. Handy , 614 F. App’x 379 (10th Cir. 2015) (“ Handy II ”).

2 As we explained when disposing of one of Mr. Handy’s prior app eals, “[a] James hearing is conducted outside the presence of the jury to make t he factual determinations necessary to admit the statemen ts of a defendant’s co-conspirat ors as non-hearsay.” United States v. Handy , 703 F. App’x 6 85, 686 n.1 (10 th Cir. 2017) (“ Handy IV ”) (citing United States v. Owens , 70 F.3d 1118, 1123 (10th Cir. 1995)).3 Second, he filed a motion under F ederal Rule of Civil Procedure 60(b) claiming that his due process rights were v iolated when the government f ailed to respond to his § 2255 argument that Detective Be nnett testified falsely at his James hearing. The district court denied Mr. Handy’s motion on the merits. He appealed agai n. We concluded that Mr. Handy’s motion was “not a tru e Rule 60(b) motion” but rathe r a “second or successive attempt at post-conv iction relief based upon argumen ts already rejected.” United States v. Handy , 646 F. App’x 635, 637 (10th Cir. 2016) (“ Handy III ”). We vacated the district court’s di sposition on the merits for lack of jurisdiction and construed Mr. Handy’s Rule 60(b) motion as an application to file a secon d or successive motion under 28 U.S.C. § 2244, which we denied. Id. at 637. Third, he filed a motion under F ederal Rule of Civil Procedure 15 to amend his original § 2255 motion to add a claim that the court failed to rule on his claim of fabricated testimony at the James hearing and for ineffective assistance of counsel. The district court construed Mr. Ha ndy’s motion to a mend as an unau thorized successive § 2255 motion and dismissed it for lack of jurisdiction. Mr. Ha ndy again sought to appeal. But we again denied a COA, concluding that the claims M r. Handy wanted to pursue were the same claims prese nted in a prior § 2255 applica tion and therefore were subject to dismissal. United States v. Handy , 703 F. App’x 685, 687 (10th Cir. 2017) (“ Handy IV ”). A few weeks after our 2017 rulin g, Mr. Handy filed two more mot ions in the district court. First, he filed a motion under Federal Rule of Civil Procedure 60(b)(4) asserting that the district cour t failed to rule on his § 2255 claim for fabricated false4 testimony and that this failure amounted to a procedural defect in his § 2255 proceedings. Second, he filed a motion under F ederal Rule of Civil Procedure 15(c)(2) once again seeking to amend his original § 2255 motion. Mr. Handy describe d his Rule 15(c)(2) motion as “contingent and permea ted on the success of” his Rule 60(b)(4) motion. R.
465. The district court again deni ed relief. It explained that it wo uld consider Mr. Handy’s Rule 60(b)(4) motion only to the extent it sought t o correct a procedural error in the disposition of h is original § 2255 motion. Id. at 492. The district court then rejected Mr. Handy’s contention th at it had failed to rule on h is fabricated-testimony claim. In the district court’s view, it “ha[d] already addresse d this issue numerous times.”
Id. at 493. The district court then identified two prior instances in the record. First, it cited its order denying Mr. H andy’s original § 22 55 motion, in which the district court stated in a footnote that Mr. Handy “calle d Detective Bennett a liar, usi ng various pejorative terms, more than 110 times in hi s forty-two pages of briefing.” Id. (quoting R. 306 n.2). Second, it cited its (vacated) ord er denying Mr. Handy’s so-cal led Rule 60(b) motion (which we later construed as an unauthorized second or successi ve § 2255 motion, see Handy III , 646 F. App’x at 637), in which the district court stated that it was “well aware that defendant alleged Detective Bennett fabricated her testimo ny, and the court considered that argument in rej ecting defendant’s habeas petiti on.” Id. (quoting R. 358). The district court entered an o rder denying Mr. H andy’s Rule 60 (b)(4) motion on the merits “to the extent that t here is no procedural error und er Rule 60(b)” and dismissing that same motion “to th e extent it is a successive § 2255 petition.” R. 494. The5 district court also dismissed Mr . Handy’s contingent Rule 15(c) (2) motion as moot and denied a COA. Mr. Handy now applies for a COA from this court so that he may appeal the district court’s denial of his Ru le 60(b)(4) motion and dismiss al of his Rule 15(c)(2) motion.
ANALYSIS We must first determine wheth er Mr. Handy’s Rule 60(b)(4) motio n is a “true” Rule 60(b) motion or whether it is in reality a misnamed second or successive § 2255 motion. See Spitznas v. Boone , 464 F.3d 1213, 1217–19 (10t h Cir. 2006) (describing the procedures to be followed on app eal from the denial of a Rule 6 0(b) motion in a habeas case). “It is the relief sought , not [the] pleading’s title, th at determines whether the pleading is a § 2255 motion.” United States v. Nelson , 465 F.3d 1145, 1149 (10th Cir. 2006). Rule 60(b)(4) provides reli ef from void judgments, Orner v. Shalala , 30 F.3d 1307, 1310 (10th Cir. 1994), w hich are “legal nullit[ies],” United Student Ai r Funds, Inc. v. Espinosa , 559 U.S. 260, 270 ( 2010). “[A] void judgment is one so affect ed by a fundamental infirmity that the infirmity m ay be raised even aft er the judgment becomes final.” Id. “The list of such infirmities is exceedingly short; otherwise, Rule 60(b)(4)’s exception to finality woul d swallow the rule.” Id. But when Rule 60(b)(4) is applicable, “relief is not a discretionary m atter; it is mandatory.” Orner , 30 F.3d at 1310 (quotation omitted). And the rule “is not s ubject to any time limitation.” Id. (quotation omitted). The district court construed Mr. Handy ’s motion as a “true” Rule 60 (b)(4) motion— at least in6 part—and denied relief on the me rits. “If the district court co rrectly treated the motion (or any portion thereof) as a ‘true’ R ule 60(b) motion and denied i t,” then Mr. Handy must obtain a COA before proce eding with his appeal. 3 Spitznas , 464 F.3d at 1217–18. On the other hand, if Mr. Handy’s Rule 60(b)(4) motion is in re ality a second or successive § 2255 motion, then “t he district court d[id] not ev en have jurisdiction to deny the relief sought in the pleading.” Nelson , 465 F.3d at 1148; see 28 U.S.C. §§ 2244, 2255(h). That is becaus e “a second or successive § 225 5 motion cannot be filed in district court without approv al by a panel of this court,” Nelson , 465 F.3d at 1148, which approval we have not give n. A COA is also required to app eal from the dismissal of an unauthorized § 2255 petition. United States v. Harper , 545 F.3d 1230 , 1233 (10th Cir. 2008). To distinguish between a “true” prisoner Rule 60(b) motion and a second or successive § 2255 motion, we focu s on the nature of the relief sought. If the motion “in substance or effect asserts o r reasserts a . . . basis for reli ef from the petitioner’s underlying conviction,” then it is a second or successive § 225 5 motion. Spitznas , 464 F.3d at 1215. But if the motion “does not challenge the merits of the district court’s resolution of his [ori ginal] § 2255 motion, but only an alleged defect in the integrity of

3 The necessity of a COA in this context has been the subject of some debate. See Williams v. Warrior , 631 F. App’x 587, 589 & n.1 (10th Cir. 2015) (noting a tensio n between our COA requirement and th e Supreme Court’s “strict rea ding of the language in 28 U.S.C. § 2253(c)(1)(A) that limits the COA requirement to ‘f inal orders that dispose of the merits of a habeas corpus proceeding’” (citing Harbison v. Bell , 556 U.S. 180, 183 (2009)); see also Buck v. Davis , 137 S. Ct. 759, 772 n.* (2017 ) (noting an apparent circuit split over whether a COA is needed t o appeal the denial of a Ru le 60(b) motion and assuming without deciding that a COA is needed). Mr. Handy conc edes that a COA is needed. We accept hi s concession.7 the earlier § 2255 proceedings,” t hen it presents “a ‘true’ Rul e 60(b) claim and should not [be] construed as a second o r successive § 2255 motion.” Peach v. United States , 468 F.3d 1269, 1271 (10th Cir. 2006). Mr. Handy’s Rule 60(b)(4) motion asserts that the district cour t “failed to rule on his 28 U.S.C. [§] 2255 bri[ef]ed claim for fabricated false tes timony.” R. 461. We have previously held that an alleged failure to rule represents a tr ue Rule 60(b) claim because it asserts a defect in the inte grity of the earlier proceedings

. See Peach , 468 F.3d at 1271; Spitznas , 464 F.3d at 1225. Because the d istrict court correctly constr ued Mr. Handy’s motion as a true Rule 60(b)(4) c laim, we now consider whether M r. Handy is entitled to a COA to appeal the district cour t’s denial of relief under Rule 60(b)(4). A COA may issue “only if the app licant has made a substantial s howing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “At the COA stage, the only question is whether the applican t has shown that ‘jurists of re ason could disagree with the district court’s resolution of h is constitutional claims or tha t jurists could conclude the issues presented are adequate to deserve encouragement to proce ed further.’” Buck v.
Davis , 137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell , 537 U.S. 322, 327 (2003)). In Buck , the Court discussed the two-part COA inquiry to be applied on review of the denial of a Rule 60(b)(6 ) motion. First, there is a subs tantive question: whether reasonable jurists could debate t he merits of the prisoner’s un derlying constitutional claim. Id. at 775. Second, there is a pro cedural question: whether reason able jurists could debate the district court’s proc edural holding that the prisone r had not made the necessary showing to reopen his case under Rule 60(b)(6). Id. In this case, the substantive question8 is whether reasonable jurists c ould debate the merits of Mr. Ha ndy’s claim that appellate counsel was ineffective for failing to argue that Detective Ben nett lied during his James hearing. And the procedural que stion is whether reasonable juri sts could debate the district court’s procedural hol ding that Mr. Han dy had not made the necessary showing that the § 2255 judgment was voi d because the district court ha d not ruled on that underlying constitutional claim . To obtain a COA, Mr. Handy mus t make both showings.
Slack , 529 U.S. at 485. We base our d ecision on the substantive ques tion and conclude that Mr. Handy has fail ed to demonstrate “that jurists of reaso ns would find it debatable whether the [§ 2255 motion] state s a valid claim of the denial of a constitutional right.”
Id. at 484. Mr. Handy alleges a “violation o f Due Process (fabricated testi mony).” R. 319. In his initial § 2255 bri efing, Mr. Handy cited Napue v. Illinois , 360 U.S. 264 (1959), and his argument appears to be that his constitutional right to due process was violated because the United States obtaine d his conviction through use o f false evidence. “A Napue violation occurs when (1) a gov ernment witness committed perju ry, (2) the prosecution knew the testimony to be false, and (3) the testimo ny was material.” United
States v. Garcia , 793 F.3d 1194, 1207 (10th Cir. 2 015). Appellate counsel did n ot pursue

a Napue claim on direct appeal. And so t he precise underlying constitu tional claim now before us is that Mr. Handy’s a ppellate counsel provided ineffe ctive assistance in failing to pursue a Napue claim based on Detective Bennett’s testimony. We review claims of ineffective as sistance of coun sel according to the twopronged test in Strickland v. Washington , 466 U.S. 668 (1984). “ First, a movant must9 show that counsel’s performance was deficient, meaning it fell below an objective standard of reasonableness as mea sured by prevailing profession al norms.” United States
v. Barrett , 797 F.3d 1207, 12 13 (10th Cir. 2015) (int ernal quotation mark s omitted). “This is a demanding standard, re quiring a showing that the per formance was outside the wide range of professionally competent assistance.” Id. (internal quotation marks omitted). “The performan ce must have been completely unreasonab le, not merely wrong.” Id. at 1214 (internal quotation ma rks omitted). “Next, a movant mu st show prejudice, meaning there is a r easonable probab ility that, but for counsel’s unprofessional errors, the result of the proceedi ng would have be en different. ” Id. (internal quotation marks omitted). “A reasonable probability is a probability suff icient to undermine confidence in the outcome of the trial.” Id. (quotation omitted). “Courts are free to address these two prongs in any order, and failure under either is dispositive.” Id. (quotation omitted). We conclude Mr. Handy has failed to demonstrate that jurists of reason would find it debatable whether Mr. Handy’s c ounsel was deficient in faili ng to pursue a Napue claim based on Detective Benne tt’s testimony. Indeed, Mr. Handy ’s combined opening brief and application for a COA d oes not even attempt to make s uch a showing. He instead focuses exclus ively on the procedural question—that is, whether the footnote in the district court’s order dispos ing of Mr. Handy’s original § 2255 motion was sufficient to overcome his Rule 60(b)(4) du e-process claim that the distri ct court failed to rule on the merits of his under lying ineffective-assistance-of-counsel claim. But Mr. Handy offers no argument as to why his counsel was ineffective in fai ling to bring a Napue10 claim. Nor does he identify wh at testimony from Detective Benne tt was untruthful. Thus, we have no inkling from Mr. Handy’ s appellate brief why he beli eves Detective Bennett lied on the stand, and it would be inappropriate for this court to scour the record in an attempt to discern what pieces o f testimony may have been untru thful and why counsel’s failure to attack that testimony might have been constitutional ly ineffective. See Eldridge
v. Berkebile , 791 F.3d 1239, 1243 n.4 (10t h Cir. 2015) (“[W]e will not serv e as [a litigant’s] attorney in construc ting arguments and searching th e record.”). In short, Mr. Handy has failed to demonstrat e that “jurists could conclud e the issues presented are adequate to deserve encour agement to pro ceed further,” see Buck , 137 S. Ct. at 773 (quoting Miller-El , 537 U.S. at 327), and we are compelled to deny a COA.
CONCLUSION For the reasons stated, we deny M r. Handy a COA a nd dismiss thi s appeal. Entered for the Court
Carolyn B. McHugh Circuit Judge