No. 1:16-CV-00895-LTB) (D. Colo.)
BACHARACH, MURPHY, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
MICHAEL R. MURPHY CIRCUIT JUDGE
pro se, Jason Brooks seeks a certificate of
appealability ("COA") from this court so he can
appeal the district court's denial of the motion he filed
pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. See Spitznas v. Boone, 464 F.3d 1213,
1218 (10th Cir. 2006) (holding a petitioner must obtain a COA
before he can appeal from the denial of a "true"
Rule 60(b) motion). Brooks also seeks authorization to
proceed in forma pauperis on appeal.
matter currently before this court began on April 20, 2016,
when Brooks filed an application for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in federal district court.
The district court dismissed the habeas petition on July 26,
2016, concluding the claim raised by Brooks was unexhausted
and procedurally barred. In March 2017, Brooks's request for
a COA was denied by this court and his appeal was dismissed.
Brooks v. Archuleta, 681 Fed.Appx. 705, 707 (10th
Cir. 2017). Brooks returned to district court and filed a
motion seeking relief from that court's July 2016
judgment pursuant to Rule 60(b)(6) of the Federal Rules of
Civil Procedure. The motion was denied by the district court
and this court denied Brooks's request for a COA.
Brooks v. Archuleta, 702 Fed.Appx. 790, 793 (10th
filed a second Rule 60(b)(6) motion in district court on
December 11, 2017. In this motion, he argued the federal
claim raised in his § 2254 petition is exhausted because
the substance of the claim was presented to the Colorado
Court of Appeals in state post-conviction proceedings he
initiated on March 7, 2016. The district court disagreed,
concluding the state post-conviction proceedings referenced
by Brooks were not completed until nearly a year after
Brooks's § 2254 petition was dismissed. Further, the
court noted, Brooks previously asserted in this matter that
the state post-conviction proceeding involved only state law
issues that "will never have anything to do with"
the claims raised in his § 2254 petition. See Duncan
v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam)
(holding a claim raised in a state-court proceeding must be
presented to that court as a federal constitutional claim or
it is not exhausted for federal habeas corpus purposes).
Accordingly, the district court denied Brooks's Rule
court cannot grant Brooks a COA unless he can
"demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong." Miller-El v. Cockrell, 537
U.S. 322, 338 (2003) (quotation omitted). Brooks is not
required to demonstrate that his appeal will succeed to be
entitled to a COA. He must, however, "prove something
more than the absence of frivolity or the existence of mere
good faith." Id. (quotations omitted). A movant
seeking relief under Rule 60(b)(6) must "show
extraordinary circumstances justifying the reopening of a
final judgment." Gonzalez v. Crosby, 545 U.S.
524, 535 (2005) (quotation omitted). "Such circumstances
will rarely occur in the habeas context." Id.
court has reviewed Brooks's application for a COA and
appellate brief, the district court's order, and the
entire record on appeal pursuant to the framework set out by
the Supreme Court and concludes Brooks is not entitled to a
COA. Reasonable jurists could not debate the district
court's conclusion that Brooks has failed to establish
the existence of extraordinary circumstances justifying Rule
60(b)(6) relief from the July 2016 ruling that the claim
raised in his § 2254 petition is procedurally barred.
Because Brooks has not "made a substantial showing of
the denial of a constitutional right, " he is not
entitled to a COA. 28 U.S.C. § 2253(c)(2).
court denies Brooks's request for a COA and dismisses
this appeal. Brooks's request to proceed in forma
pauperis in this matter is denied and we remind him of his
responsibility to immediately pay the unpaid balance of the
appellate filing fee.
Specifically, Brooks filed a Colorado
Rule 35(c) post-conviction motion on August 10, 2015, raising
the issue he raised in this federal habeas petition. The
Colorado trial court denied the Rule 35(c) motion, concluding
it was untimely and the claim was procedurally barred. Brooks
did not appeal the denial of the motion. The federal district
court concluded Brooks's failure to appeal resulted in
his failure to exhaust an available state remedy. The
district court found exhaustion is futile because the time to
file an appeal has expired.
Brooks's repeated attempts to obtain relief
pursuant to Rule 60(b)(6) appear to be based on his
misreading-whether willful or otherwise-of the holding in
Anderson v. Sirmons, 476 F.3d 1131 (10th Cir. 2007).
In that matter, exhaustion of a federal habeas
petitioner's ineffective assistance claim was futile
because he was procedurally barred from bringing it in
Oklahoma state court. Id. at 1136-37. The federal
district court went on to analyze whether the unexhausted
claim was procedurally barred in federal court. Id.
at 1137 (citing James v. Gibson, 211 F.3d 543, 550
(10th Cir. 2000) for the proposition that "[e]ven if a
failure to exhaust is excused, . . . claims may otherwise be
procedurally barred"). After determining the state of
Oklahoma had not shown the state procedural bar was
evenhandedly applied, the federal district court ruled the
claim was not procedurally barred and addressed it on the
merits. Id. at 1137. Anderson most
certainly does not stand for the proposition
espoused by Brooks-i.e., that the federal courts must
consider the merits of an unexhausted claim if exhaustion is
futile because of a state procedural bar. Such a claim is
procedurally barred in federal court unless the state
procedural bar is not adequate and independent. Coleman
v. Thompson, 501 U.S. 722, 731-32, 750 (1991). If the
state procedural bar is determined to be adequate and
independent, "federal habeas review of the claims is
barred unless the [petitioner] can demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice." Id. at 750. In its order
dismissing Brooks's § 2254 petition, the district
court fully examined all of these issues before concluding
Brooks's claim is procedurally barred. Although the
reasoning behind the district court's dismissal of
Brooks's § 2254 habeas petition has been clearly
explained to him multiple times, both by the district court
and this court, he continues to seek relief pursuant to Rule
60(b)(6). The district court may, in its discretion, consider
the propriety of imposing filing restrictions on
On March 7, 2016, Brooks filed a state
post-conviction motion which was denied by the state trial
court on April 4, 2016. At the time Brooks filed his §
2254 petition on April 20, 2016, his appeal to the Colorado
Court of Appeals from the state trial court ruling was still