United States v. Steele ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 22, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-3196
(D.C. Nos. 2:14-CV-02512-JWL &
DON MILTON STEELE, 2:10-CR-20037-JWL-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, O’BRIEN, and McHUGH, Circuit Judges.
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Don Milton Steele, a federal prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the district court’s order construing his “Petition for Relief
from a Judgement or Order Pursuant to Rule 60(b)(2) and or 60(d)(3) ‘Savings Clause’ or
Rule 60(b)(6) with request for Equitable Tolling” as an unauthorized second or
successive 28 U.S.C. § 2255 petition, and dismissing it for lack of jurisdiction. We deny
a COA and dismiss this matter.
Steele was convicted in 2012 of counterfeiting and drug-related offenses, as well
as possession of a firearm in furtherance of a drug-trafficking crime in violation of
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
18 U.S.C. § 924(c). We affirmed his convictions and sentence on direct appeal. United
States v. Dyke, 718 F.3d 1282, 1292, 1294 (10th Cir. 2013). Steele filed a first § 2255
motion in 2014. The district court denied relief and this court denied a COA. In 2018,
Steele filed his motion for relief under Fed. R. Civ. P. 60. The district court dismissed
the petition as second or successive and Steele filed a notice of appeal.1
To appeal, Steele must obtain a COA. See § 2253(c)(1)(B). To obtain a COA,
“a prisoner [must] show[], at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006), we held that a Rule 60
motion that “in substance or effect asserts or reasserts a federal basis for relief from the
petitioner’s underlying conviction” is second or successive. Steele fails to explain why
the court’s determination that the Rule 60 motion was second or successive was wrong.
We deny a COA and dismiss this appeal.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
1
Shortly after the district court dismissed Steele’s Rule 60 motion, he filed a
motion for authorization in this court in which he argued that he should be permitted
to bring the same claims he sought to raise in Rule 60 motion in a new § 2255
proceeding. This court denied the motion.
2