UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DELANO MEDINA, Petitioner - Appellant,

v. EDDIE CALEY, Warden of Colorado Territorial Correctional Facility, JENNIFER MURPHY, Manager of Time/Release Operations, COLORADO PAROLE BOARD, and PHILIP WEISER, Attorney General of the State of Colorado, Responden t s - Appellees. No. 24-1289 (D.C. No. 23-CV- 01042-LTB-SBP) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before BACHARACH , McHUGH , and FEDERICO , Circuit Judges.

________________ _________________ Delano Medina, a Colorado stat e prisoner proceeding pro se, 1 seeks a certificate of appealability (“COA”) to challenge the district court’s denial of his motion under Federal Rule of Civil Proce dure 60(b) that sought to reopen his 28 U. S.C. § 2241 petition. Mr. Medina also moves to proceed in fo rma pauperis (“IFP”). ECF No. 16. Because

* This order is not binding precedent except u nder the doctrines of law of the case, res judicata, and collateral estoppe l. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.

1 Because Mr. Medina proceeds pro se, “we liber ally construe his filings, but we will not act as his advocate.” James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). FILED United States Court of Appeals Tenth Circuit 

### October 2, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 24-1289 Document: 19-1 Date Filed: 10/02/2024 Page: 12 Mr. Medina has failed to satisfy the standa rds for issuance of a COA, we deny his application for a COA. We al so deny his motion to proceed IFP and dismiss this matter.
I. BACKGROUND Mr. Medina filed the instant § 2241 petition in the United States District Court for the District of Colorado, contending that the Colorado Department of Corrections improperly computed his paro le eligibility date. After a ma gistrate judge recommended that the petition be dismissed without prejudice for failure to fully exhaust state court remedies, Mr. Medina filed a document titled Medina’s Response to Magistrate’s Recommendation and Agreement to Dismiss Without Prejudice , in which he “agree[d] this case should be dismissed without prejudice and [did] not object to the recommendation.” ROA at 178. That respon se stated that he “agree[d] with the recommendation” because his “further resear ch” led him to conclude that “42 U.S.C. [§] 1983 is the proper vehicle to address this claim,” noting that he had “recently filed” such an action. Id. at 177–78. The district court construed Mr. Medina ’s response as a notice of voluntary dismissal under Federal Rule of Civil Proc edure 41(a)(1)(A). In the alternative, the district court reviewed the substance of the recommendation and found no error. Accordingly, the district court dismissed the action without prejudice on September 11,
2023. More than nine months later, on June 14, 2024, Mr. Medina filed a Motion to Reopen Petition for Writ of Habeas Corpus Pursuant to Fed. R. Civ. P. 60(b) . On July 3, 2024, the district court denied the motion fo r two reasons. First, that Mr. Medina’s Appellate Case: 24-1289 Document: 19-1 Date Filed: 10/02/2024 Page: 23 voluntary dismissal was entered without prejudic e, which disposition “divests the district court of subject-matter jurisdiction to co nsider a Rule 60(b) motion.” ROA at 206 (quoting Waetzig v. Halliburton Energy Servs., Inc. , 82 F.4th 918, 92 0 (10th Cir. 2023)). And second, that Mr. Medina had not pr esented “extraordinary or exceptional circumstances to justify relief und er Rule 60(b),” in part because “[i]t remain[ed] the case that any claim [Mr. Medina] presents in a federal habeas application must first be exhausted in state court.” ROA at 207–08. Mr. Medina filed a timely notice of app eal, followed by an ap plication for a COA and a motion to proceed IFP on appeal. ECF Nos. 14, 16.
II. DISCUSSION Before we may exercise ju risdiction over Mr. Medina’s case, he must obtain a
COA. See 28 U.S.C. § 2253(c)(1)(A) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal may no t be taken to the court of appeals from . . . the final order in a habeas corpus proc eeding in which the de tention complained of arises out of process issued by a State court.”); Montez v. McKinna , 208 F.3d 862, 869 (10th Cir. 2000) (“[T]his court reads § 22 53(c)(1)(A) as applying whenever a state prisoner habeas petition relates to matters flow ing from a state court detention order. This includes . . . challenges related to the inci dents and circumstances of any detention pursuant to state court process under § 2241.”). Under 28 U.S.C. § 2253(c)(2), “[a] certific ate of appealability may issue . . . only if the applicant has made a substantial showi ng of the denial of a constitutional right.” To satisfy this standard, the a pplicant must “show [] that reasonable jurists could debate Appellate Case: 24-1289 Document: 19-1 Date Filed: 10/02/2024 Page: 34 whether (or, for that matter, ag ree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to dese rve encouragement to proceed further.’” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle , 463 U.S. 880, 893 n.4 (1983)). Mr. Medina has failed to satisfy this standa rd and is thus not entitled to a COA. In his opening brief, Mr. Medina claims the distri ct court erred in denying his Rule 60(b) motion to reopen his § 2241 petition, but inst ead of identifying any supposed error in the district court’s disposition of that motion, Mr. Medina merely argues the merits of his petition and emphasizes that similar claims fo r miscalculated release dates are generally appropriate under habeas corpus. 2 But the instant COA applic ation is necessarily limited to the denial of his Rule 60(b) motion; ind eed, the time to appeal the district court’s

2 Mr. Medina further complains that he voluntarily dismissed his § 2241 petition in accordance with “the courts [sic] instructions to seek relief in a § 1983” action, claiming, without citation, that the district court’s di smissal order concluded “that he should have filed his claim under 42 U.S.C. § 1983.” Open ing Br. at 1, 3. Mr. Medina claims he has been ensnared in a “Catch-22,” id. at 3, after we affirmed the dismissal of his § 1983 action because his request for “speedier rele ase from confinement” was “cognizable only in a habeas corpus action.” Medina v. Murphy , No. 24-1029, 2024 WL 3289638, at *1 (10th Cir. July 3, 2024) (unpub lished). But the premise of this grievance fails in the first instance: that is, neither the magistrate j udge nor the district court suggested in any measure that Mr. Medina should seek the same relief request ed in his § 2241 petition in a § 1983 action. Rather, the magi strate judge recommended dismissal for the sole reason that Mr. Medina had “fail[ed] to exhaust st ate remedies,” ROA at 176, and the district court dismissed the petition on the basis of Mr. Medina’s request for dismissal and his express agreement with the magistrate judge’s conclusion. Indeed, the record in this case discloses that the only allusion to § 1983—express or otherwise—appears in Mr. Medina’s response to the magistrate j udge’s recommendation, in which Mr. Medina requested dismissal of his petition and stated that his research convinced him that “[§] 1983 is the proper vehicle to address this claim.” ROA at 177. Appellate Case: 24-1289 Document: 19-1 Date Filed: 10/02/2024 Page: 45 dismissal of his § 2241 petition—embodied in a fi nal judgment entered on September 28, 2023—has long since run. See Fed. R. App. P. 4(a)(1)(A). Mr. Medina does not address the district court’s reasons for denying the Rule 60(b) motion—that his voluntary dismissa l divested the court of subject matter jurisdiction and that he had not pointed to exceptional circumstances justifying relief. Mr. Medina has thus not shown that reasona ble jurists could debate whether his Rule 60(b) motion “should have been re solved in a different manner.” Slack , 529 U.S. at 484. Finally, Mr. Medina’s IFP motion must be denied. To succeed in his motion, Mr. Medina must “show a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 5 02, 50 5 (10th Cir. 1991). Mr. Medina has failed to address the grounds upon which the district court denied his Rule 60(b) motion and has thus not shown the “existence of a re asoned, nonfrivolous argument.” Id.
III. CONCLUSION We DENY Mr. Medina's request for a C OA and his motion for leave to proceed IFP and DISMISS this matter.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 24-1289 Document: 19-1 Date Filed: 10/02/2024 Page: 5