United States v. Montague ( 2009 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    December 30, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                             Nos. 09-4077 & 09-4078
    (D.C. Nos. 2:06-CV-00878-DAK &
    STEVEN DAVID MONTAGUE,                         2:09-CV-00271-DAK &
    2:03-CR-00100-DAK)
    Defendant-Appellant.                       (D. Utah)
    ORDER *
    Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
    Steven David Montague seeks to appeal the district court’s denial of his
    Federal Rule of Civil Procedure 60(b) motion challenging the court’s earlier
    denial of his motion under 
    28 U.S.C. § 2255
     to vacate, set aside, or correct his
    criminal sentence. We deny a certificate of appealability (“COA”) and dismiss
    the appeal.
    *
    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 This order is not binding
    precedent, except under the doctrines of law of the case, res judicata, and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.
    The facts underlying Montague’s conviction are set forth in United States v.
    Montague, 
    421 F.3d 1099
    , 1100-01 (10th Cir. 2005), and will not be restated here.
    When he sought relief under § 2255, the district court denied the motion because
    it was untimely, among other reasons. On appeal, this court held that the § 2255
    motion was not time-barred, but that a COA was not warranted because
    Montague’s other claims had no merit. United States v. Montague, 260 F. App’x
    60, 63 (10th Cir.), cert. denied, 
    129 S. Ct. 131
     (2008).
    More than a year later, Montague filed a motion under Rule 60(b)(4) and
    (6), in which he (1) argued that the district court’s erroneous ruling on timeliness
    caused the court to fail to rule on his § 2255 claims and his new evidence, and
    (2) set forth two grounds for challenging his conviction and sentence. The
    district court correctly characterized the motion as a “mixed” motion asserting
    both “true” Rule 60(b) arguments, which do not require this court’s authorization
    to proceed, and second or successive § 2255 claims, which do require
    authorization under § 2255(h). See Spitznas v. Boone, 
    464 F.3d 1213
    , 1217
    (10th Cir. 2006). The court denied the 60(b) arguments and dismissed the other
    claims for lack of jurisdiction. See In re Cline, 
    531 F.3d 1249
    , 1252 (10th Cir.
    2008). Montague now seeks to appeal the denial of the 60(b) arguments. He does
    not challenge the dismissal of the unauthorized successive § 2255 claims.
    Montague requires a COA to appeal the denial of his 60(b) arguments. See
    
    28 U.S.C. § 2253
    (c)(1)(B); Spitznas, 
    464 F.3d at 1217-18
    . A COA may issue
    -2-
    “only if the applicant has made a substantial showing of the denial of a
    constitutional right.” 
    28 U.S.C. § 2253
    (c)(2). In this context, to obtain a COA a
    movant must show “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.” Spitznas, 
    464 F.3d at 1225
     (quotation omitted). This court
    reviews the denial of a Rule 60(b)(6) motion for abuse of discretion, and the
    denial of a Rule 60(b)(4) motion de novo. See Amoco Oil Co. v. U.S. Envtl. Prot.
    Agency, 
    231 F.3d 694
    , 697 (10th Cir. 2000).
    In this case, we need look no farther than the second part of the COA test.
    For substantially the reasons stated in the district court’s Memorandum Decision
    and Order dated March 31, 2009, we are not convinced that reasonable jurists
    would find it debatable whether the district court abused its discretion in denying
    Montague’s Rule 60(b)(6) arguments or erred in denying relief under Rule
    60(b)(4).
    The motions to proceed without prepayment of fees are GRANTED. A
    certificate of appealability is DENIED and the appeal is DISMISSED.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    -3-
    

Document Info

Docket Number: 09-4077, 09-4078

Judges: Kelly, Porfilio, O'Brien

Filed Date: 12/30/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024