FILED United States Court of Appeals Tenth Circuit 

### February 5, 2019 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DESHANE GANTT, Defendant-Appellant. No. 18-3172 (D.C. Nos. 6:10-CR-10175-EFM-1 & 6:13-CV-01415-MLB) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HOLMES , MATHESON , and EID , Circuit Judges.
Deshane Gantt seeks a certificate of appealability (“COA”) to a ppeal from the district court’s orders dismissing his Federal Rule of Civil Pr ocedure (“Rule”) 60(b) motion and denying his Rule 59(e) motion. Insofar as Mr. Gantt purports to appeal from the order dismissing his Rule 60(b) motion, we dismiss that portion of his appeal for lack of jurisdiction. And we denyMr. Gantt’s request for a COA to appeal from the order denying his Rule 59(e) motion and dismiss this matter.

* This Order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cit ed, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.I In 2011, Mr. Gantt pleaded guilty to using a firearm during a b ank robbery. After an unsuccessful appeal, Mr. Gantt moved to vacate his sentence under 28 U.S.C. § 2255. Among other claims, his pro se § 2255 motion claimed that his c ounsel was ineffective during plea negotiations. The district court denied the § 2255 motion. Years later, Mr. Gantt moved under Rule 60(b) to set aside the district court’s order denying his § 2255 motion and to reopen the proceeding. In this Rule 60(b) motion, Mr. Gantt argued that there was a defect in his habeas proceedi ng because he lacked postconviction counsel to help him file the § 2255 motion. Mor e specifically, Mr. Gantt alleged that this defect caused him to omit from his § 2255 mot ion substantial claims of ineffective assistance of counsel relating to plea negotiations . And so he asked the court to remedy this defect by vacating its prior order denying his § 2255 motion and by permitting him “to withdraw his plea for ineffective assistance of counsel.” R., Vol. II, at 322 (Rule 60(b) Mot., filed July 19, 2017). On January 17, 2018, the district court dismissed the Rule 60(b ) motion for lack of jurisdiction as an unauthorized second or successive § 2255 mot ion (the “January Order”). 1 The court acknowledged that Mr. Gantt styled his Rule 60(b) m otion as “challenging a ‘defect’ in the previous habeas proceeding”—name ly, lack of

1 A prisoner may not file a second or successive § 2255 motion wi thout authorization from this court. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). A district court lacks jurisdiction to consider the merits of a second or succes sive § 2255 motion absent circuit authorization. In re Cline , 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam). 2postconviction counsel. Id. at 357 (Mem. & Order, entered Jan. 17, 2018). But the court noted that Mr. Gantt used this “defect” to excuse his failure t o make ineffectiveassistance-of-trial-counsel claims in his original § 2255 motio n. The problem for Mr. Gantt, the court explained, was that his fi rst § 2255 motion did raise an ineffective-assistance-of-trial-counsel claim, which the court rejected. So although Mr. Gantt alleged an ostensible “defect” in his first habeas proceeding, the Rule 60(b) motion actually “challenge[d] the validity of his sentenc e and reassert[ed] ineffective assistance of [trial] counsel claims.” Id. at 358. In other words, the motion attacked the validity of his sentence by asserting an old claim wrapped in new rationales. As such, the court reasoned that Mr. Gantt’s motion was not a “ true” Rule 60(b) motion but, rather, a second or successive § 2255 motion. Thus, the c ourt dismissed the motion for lack of jurisdiction. 2 Thirty days later, on February 16, 2018, Mr. Gantt moved under Rule 59(e) to amend the January Order. He argued that the district court cle arly erred by construing his Rule 60(b) motion as a second or successive § 2255 motion. To correct that alleged clear error, Mr. Gantt asked the court to amend the January Order. O n July 13, 2018, however,

2 In the January Order, the district court noted that Mr. Gantt l acked “a right to counsel during his § 2255 proceeding.” R., Vol. II, at 357. The lack of a constitutional right to postconviction counsel, however, was not the basis on which the court dismissed Mr. Gantt’s Rule 60(b) motion. Rather, the court dismissed the motion as an unauthorized second or successive motion because “[t]he substan ce of [Mr. Gantt’s Rule 60(b)] motion challenge[d] the validity of his sentence and rea ssert[ed] ineffective assistance of [trial] counsel claims.” Id. at 358. 3the district court denied Mr. Gantt’s Rule 59(e) motion (the “July Order”). The court again explained why it had treated the Rule 60(b) motion as an unauthorized second or successive § 2255 motion. A month later, Mr. Gantt filed a notice of appeal. The notice said that Mr. Gantt “objects to” the district court’s “order and judgment as it rel ates to both the 60(b) and 59(e) [motions].” Id. at 526 (Notice of Appeal, filed Aug. 13, 2018). Because the d istrict court treated Mr. Gantt’s Rule 60(b) motion as a second or succ essive § 2255 motion, this court concluded that § 2253(c)’s COA requirement applied and re manded for the district court to consider whether to issue Mr. Gantt a COA. The distri ct court refused to grant a
COA.
II Pursuant to the Antiterrorism and Effective Death Penalty Act o f 1996 (“AEDPA”), a COA is a jurisdictional prerequisite to this court ’s review of a “final order” in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B); see also Gonzalez v. Thaler , 565 U.S. 134, 142 (2012) (discussing the “clear” jurisdiction al language in § 2253(c)(1)). As relevant here, this COA requirement applies to appeals from orders resolving motions under Rules 59(e) and 60(b). See Spitznas v. Boone , 464 F.3d 1213, 1225 (10th Cir. 2006) (applying COA requirement to appeal from an order denying a Rule 60(b) motion); see also United States v. Tatum , 613 F. App’x 770, 770 (10th Cir. 2015) (unpublished) (“We retain jurisdiction . . . to consider whether Tatum is entitled to a COA permitting review of the district court’s denial of his R ule 59(e) motion.”); United
4States v. Cobb , 307 F. App’x 143, 145 (10th Cir. 2009) (unpublished) (observi ng, in § 2255 proceeding, that Spitznas ’s reasoning underlying COA requirement for appeal of Rule 60(b) ruling “applies equally to motions under Rule 59(e)” ). We must decide whether to grant Mr. Gantt a COA to appeal from either the district court’s January Order dismissing his Rule 60(b) motionor the court’s July Order denying his Rule 59(e) motion.
A Before we may consider whether to grant Mr. Gantt a COA to appe al the January Order, we must first satisfy ourselves that we have jurisdictio n. To properly invoke our jurisdiction, an appellant must file a timely notice of appeal. See F ED
. R. A PP
. P. 3(a)(1); see also Faircloth v. Raemisch , 692 F. App’x 513, 517 (10th Cir. 2017) (unpublished) (noting that whether an appeal is timely is jurisdictional and this is an issue to be considered before addressing whether to grant a COA). In a civ il case in which the United States is a party, as here, a would-be appellant has six ty days to appeal from a final order. See F ED
. R. A PP
. P. 4(a)(1)(B)(i). Although a Rule 59(e) motion can toll this time limit, see id. 4(a)(4)(A)(iv), it does so only “if the motion was itself timel y.” Searles v. Dechant , 393 F.3d 1126, 1129 (10th Cir. 2004). A party has twenty-eig ht days to move to amend an order under Rule 59(e). See F ED
. R. C IV
. P. 59(e). If a party files an untimely appeal from a final order, we lack jurisdiction over that appeal. See Becker v. Montgomery , 532 U.S. 757, 765–66 (2001) (reaffirming that Fed. R. App. P. 3(a)(1) is jurisdictional).
5Mr. Gantt purports to appeal from the January Order dismissing his Rule 60(b) motion. However, we conclude that this appeal is untimely. Mo re specifically, although Mr. Gantt did file a Rule 59(e) motion, he did so thirty days a fter the district court entered the January Order—that is, two days too late to toll the runnin g of the time period to appeal from that January Order (i.e., the Rule 60(b) order). 3 Therefore, Mr. Gantt had until mid-March to appeal from the January Order. He missed th at deadline by five months, filing his notice of appeal with respect to the JanuaryOrder in August 2018. Thus, Mr. Gantt’s notice of appeal is untimely as to the Januar y Order and will not permit us to take jurisdiction over his appeal from that order. Accor dingly, we are constrained to dismiss Mr. Gantt’s appeal insofar as it relates to the JanuaryOrder for lack of jurisdiction.
B Mr. Gantt’s notice of appeal was filed within the prescribed si xty-day period following the district court’s order denying his Rule 59(e) mot ion. Thus, we have jurisdiction to determine whether to grant Mr. Gantt a COA to a ppeal from that order. Under the familiar COA standard, we inquire whether “the applic ant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). What an applicant must do to carry this burden turns on whether the district court resolved the

3 Having independently reviewed Mr. Gantt’s motion, we note that this conclusion of untimeliness could not be avoided through application of the prison mailbox rule, and Mr. Gantt has not attempted to carry his “bur den of proof on this issue” in any event. Price v. Philpot , 420 F.3d 1158, 1165 (10th Cir. 2005). 6motion before it on the merits or on procedural grounds. See United States v. Springer , 875 F.3d 968, 981 (10th Cir. 2017). To get a COA from a merits ruling, an applicant must show that “jurists of reason could disagree with the distr ict court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Buck v. Davis , --- U.S. ----, 137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell , 537 U.S. 322, 327 (2003)). But if the court relied on a procedural ground in denying relief, an applicant m ust show both that “jurists of reason would find it debatable whether the [motion] states avalid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the dis trict court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (emphasis added). Notably, orders dismissing Rule 60(b) motions or other post-jud gment filings as unauthorized second or successive actions are classified under Slack ’s rubric as procedural rulings. See Springer , 875 F.3d at 981 (describing a COA request from a Rule 60(b) denial as involving a “procedural ruling”); Laurson v. Leyba , 507 F.3d 1230, 1231–32 (10th Cir. 2007) (same). 4 Accordingly, panels of this court have made clear that, for prisoners seeking to appeal from such orders, it is n ecessary (though not

4 See also United States v. McCoy , --- F. App’x----, No. 18-4057, 2018 WL 6179008, at *1–2 (10th Cir. Nov. 27, 2018) (unpublished) (treat ing an order denying a Rule 60(b) motion as a successive § 2255 motion as a procedural ruling); United States v. Alvarez , 735 F. App’x 550, 551 (10th Cir. 2018) (unpublished) (same); United States v. Margheim , 735 F. App’x 974, 977 (10th Cir. 2018) (unpublished) (same). 7sufficient) that they overcome Slack ’s procedural hurdle. That is, they must establish that reasonable jurists could debate the propriety of such dismissal orders. See, e.g. , United States v. Harper , 545 F.3d 1230, 1233 (10th Cir. 2008) (requiring a prisoner to overcome Slack ’s procedural hurdle to appeal from the district court’s dismis sal of a post-judgment motion as second or successive). And the same holds true for o rders denying Rule 59(e) motions seeking to upend such prior dismissals—i.e., prisoners must establish that reasonable jurists could debate a district court’s denial of su ch motions. See, e.g. , Dopp
v. Martin , --- F. App’x ----, No. 18-5070, 2018 WL 5291024, at *1 (10th Cir. Oct. 24, 2018) (unpublished) (applying Slack ’s procedural burden regarding a request for a COA to appeal from an order denying a Rule 59(e) motion to alter anorder that dismissed a filing as successive); United States v. McKinney , 743 F. App’x 252, 255 (10th Cir. 2018) (unpublished) (same); United States v. Tuyen Vu Ngo , 700 F. App’x 806, 808–09 (10th Cir. 2017) (unpublished) (same). The upshot is that we cannot grant Mr. Gantt a COA to appeal fr om the July Order denying his Rule 59(e) motion unless jurists of reason could de bate the district court’s resolution of that motion, and our determination of that issue depends on whether reasonable jurists could debate the district court’s procedural determination that his Rule 60(b) motion was an unauthorized second or successive § 2255 mo tion. We conclude that reasonable jurists could not debate this procedural determ ination. A Rule “60(b) motion is a second or successive petition [or § 2 255 motion] if it in substance or effect asserts or reasserts a federal basis for re lief from the petitioner’s
8underlying conviction.” Spitznas , 464 F.3d at 1215. Even when a Rule 60(b) motion “challenges a defect in the integrity of the federal habeas pro ceeding,” it is not a true Rule 60(b) motion if that challenge “lead[s] inextricably to a merit s-based attack on the disposition of a prior habeas petition” or § 2255 motion, id. at 1216—i.e., a disposition that implicates a prisoner’s claims for relief with respect to his underlying conviction. Put differently, “a Rule 60(b) motion is actually a second-or-s uccessive petition [or § 2255 motion] if the success of the [Rule 60(b)] motion depends on a determination that the court had incorrectly ruled on the merits in the habeas [or § 2255] proceeding.” In re Pickard , 681 F.3d 1201, 1206 (10th Cir. 2012). The district court correctly dismissed Mr. Gantt’s Rule 60(b) m otion as an unauthorized second or successive § 2255 motion. Recall that the “defect” Mr. Gantt alleged was his omission of a “meritorious claim of ineffective assistance of counsel”; this omission was supposedly caused by Mr. Gantt’s “lack of [po stconviction] counsel.” R., Vol. II, at 312. And Mr. Gantt asked the court to correct the defect—not only by vacating its order denying his § 2255 motion—but also by permitting him “to withdraw his [guilty] plea for ineffective assistance of counsel.” Id. at 322. The district court had already denied Mr. Gantt that same relief when Mr. Gantt advanc ed a claim of ineffective assistance in his original § 2255 motion. Based on the foregoi ng, it is beyond peradventure that in his Rule 60(b) motion Mr. Gantt was actual ly seeking to “reassert[] a federal basis for relief from [his] underlying conviction.” Spitznas , 464 F.3d at 1215. As such, Mr. Gantt’s motion was not a true Rule 60(b) motion; it was an
9unauthorized second or successive § 2255 motion, as the distric t court determined. See Gonzalez v. Crosby , 545 U.S. 524, 530–31 (2005) (explaining that a Rule 60(b) mot ion “seek[ing] vindication” of a claim of constitutional error omitted from a prior habeas petition should be treated as a successive petition); cf. In re Pickard , 681 F.3d at 1206–07 (holding that the portion of a Rule 60(b) motion alleging that the government deceived the habeas court during the § 2255 proceeding was a “true” Rule 60(b) motion but that the portion of the motion that merely repeated an already-rejected claim that “the prosecution violated its Brady/ Giglio duties at trial was properly characterized . . . as a second-o rsuccessive claim”). And therefore reasonable jurists could not debate the district court’s resolution of Mr. Gantt’s Rule 59(e) motion, which sought to up end the court’s procedural ruling dismissing his Rule 60(b) motion. 5 Accordingly, we deny Mr. Gantt a COA to appeal from the district court’s July Order denying his Rule 59(e) motion.
III For the forgoing reasons, the portion of Mr. Gantt’s appeal see king a COA to challenge the district court’s dismissal of his Rule 60(b) moti on is DISMISSED for lack

5 Mr. Gantt’s application for a COA discusses at length Trevino v. Thaler , 569 U.S. 413 (2013), and Martinez v. Ryan , 566 U.S. 1 (2012). Those cases address whether an instance of ineffective assistance of counsel during state-court collateral proceedings may excuse a procedural default of an underlying in effective-assistance-oftrial-counsel claim. Assuming arguendo that the rubric of Trevino and Martinez is apposite in this federal proceeding stemming from the district court’s denial of a § 2255 motion, the problem for Mr. Gantt is that there is no defaultedineffective-assistance-oftrial-counsel claim to excuse; he raised such a claim in his or iginal § 2255 motion. Trevino and Martinez are therefore not germane here. 10of appellate jurisdiction. In the remainder of his appeal, Mr. Gantt requests a COA to attack the court’s denial of his Rule 59(e) motion. This reque st is DENIED and we accordingly DISMISS this matter. 6

ENTERED FOR THE COURT

Jerome A. Holmes Circuit Judge

6 Mr. Gantt’s September 7, 2018, motion for publication of our de cision resolving this matter is denied

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