After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

November 8, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 06-2137

v. (D. New Mexico)

ULYSSES HARPER, JR.,

Defendant - Appellant.

(D.C. Nos. CIV-06-0007 JC/WPL and

CR-96-220 JC)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before TACHA, Chief Circuit Judge, HARTZ, and TYMKOVICH, Circuit

Judges.

Ulysses S. Harper was convicted in the United States District Court for the

District of New Mexico on a charge of conspiracy to possess methamphetamine

with intent to distribute. We affirmed his conviction on November 16, 1998. See

United States v. Harper, No. 97-2153, 1998 WL 794972. On January 3, 2006, he

filed a motion in the district court entitled “Petitioner’s Motion to Correct
-2-

Sentence Pursuant to Federal Rule of Civil Procedure 60(b)(1)(6) Mistake, Fraud,

Inadvertence, Excusable Neglect. Gonzales v. Crosby, ___ U.S. ___, No. 04-

6432, June 23, 2005.” The motion challenges his sentence as contrary to United

States v. Booker, 543 U.S. 220 (2005). 

The district court correctly decided that the motion is not a proper

Rule 60(b) motion but rather a motion under 28 U.S.C. § 2255. See United States

v. Nelson, No. 06-6071, 2006 WL 2848113 (10th Cir. Oct. 6, 2006). The court

also correctly noted that 

“district courts should not recharacterize a motion purportedly made

under some other rule as a motion made under § 2255 unless (a) the

movant, with knowledge of the potential adverse consequences of

such recharacterization, agrees to have the motion so recharacterized,

or (b) the court finds that, notwithstanding its designation, the

motion should be considered as made under § 2255 because of the

nature of the relief sought, and offers the movant the opportunity to

withdraw the motion rather than have it so recharacterized.”

R. Doc. 2 at 2 (Mem. Op. & Order, Feb. 7, 2006) (quoting United States v. Kelly,

235 F.3d 1238, 1242 (10th Cir. 2000)) (further internal quotation marks omitted). 

The district court then observed, however, that recharacterization would not

prejudice Mr. Harper because his motion was untimely. See United States v.

Martin, 357 F.3d 1198, 1200 (10th Cir. 2004). It therefore recharacterized his

motion as one under § 2255 and dismissed the motion with prejudice as untimely.

Mr. Harper can appeal the district court’s ruling only if we grant a

certificate of appealability (COA). See 28 U.S.C. § 2253(c). He is entitled to a
-3-

COA only if reasonable jurists could debate the district court’s ruling. See Slack

v. McDaniel, 529 U.S. 473, 484 (2000). 

No reasonable jurist could debate the district court’s ruling. We therefore

DENY Mr. Harper’s request for a COA and DISMISS the appeal. We also DENY

his motion to proceed in forma pauperis.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge