Convict Denied COA on PTSD Unasserted Defense

the extensive delay in filing the motion, mr. west provided the district court with same basis as his request under rule 60(b)(4). this claim lacks merit because in january 1990, mr. west and allan mercer were embroiled in a dispute (1) mistake, inadvertence, surprise, or excusable neglect; (2) in the habeas context.'" omar-muhammad, 484 f.3d at 1264 (quoting gonzalez, -3- cir. 2009) (per curiam). a rule 60(b) motion constitutes "a second or successive claims that the district court erroneously applied a procedural bar to the claim that skiver v. united states, 952 f.2d 1241, 1244 (10th cir. 1991) (internal quotation v. conclusion that mr. west was afforded due process and that the judgment is not whether they constituted "second or successive" habeas petitions. first, when background recommending the application of the procedural bar to mr. west's claim 597 f.2d at 225. "a judgment is void only if the court which rendered it lacked petitioner must demonstrate "that jurists of reason would find it debatable a "grand reservoir of equitable power to do justice in a particular case," van rule 60(b)(6) motion for abuse of discretion, beugler v. burlington n. & santa fe and dismiss this matter. -8- vacate his underlying conviction, his motions are "true" rule 60(b) motions. opportunity to be heard�were fully satisfied." orner v. shalala, 30 f.3d 1307, judgment that has been reversed or vacated; or applying it petitioner-appellant, his petition for rehearing on march 23, 1993. on february 12, 1996, the state analyzing a rule 60(b) motion, we must "consider each of the issues raised in the 1310 (10th cir. 1994). "[a] judgment is not void merely because it is erroneous." or extrinsic), misrepresentation, or misconduct by an opposing involving his alleged post-traumatic stress disorder. the district court likewise as an alternative basis for denying the rule 60(b)(6) motion, the a manner inconsistant [sic] with due process of law when it procedurally barred district court denied mr. west's application for post-conviction relief. on proceeding with his or her appeal." id. at 1217�18. "a coa is a jurisdictional procedural bar asserted by the state." aplt.'s opening br. and request for coa conclusion united states v. buck, 281 f.3d 1336, 1344 (10th cir. 2002), and the denial of a 1213, 1224 (10th cir. 2006). second, if the motion is a "true" rule 60(b) motion, court held that the judgment was not void under rule 60(b)(4) because mr. west the district court denies the petitioner's claims on procedural grounds, the violated his due process rights when it applied a procedural bar to his before kelly, briscoe, and holmes, circuit judges. we must determine whether mr. west is entitled to a coa. id. at 1224�25. traumatic stress disorder." e.g., r. at 495 (pet'r's mot. pursuant to rule 60(b)(4) (continued...) b. rule 60(b)(6) independent review of the state court record and applied the relevant law when 2005) (upholding a district court's determination that an unexplained one-year * on this claim. see spitznas, 464 f.3d at 1216. thus, because mr. west's attack is of parole. (e.d. okla.) jurisdiction of the subject matter, or of the parties, or acted in a manner "[a] rule 60(b)(6) motion may not be used as a vehicle to re-allege 60(b)(4) that jurists of reason would find it debatable whether the district court was correct 3 ruling or his appeal to the tenth circuit. the district court also held that mr. law of the case, res judicata, and collateral estoppel. it may be cited, however, magistrate judge and the district court. however, mr. west neglected to raise this entered for the court years after the district court's judgment on his habeas petition, which is not reopening of his case, under a limited set of circumstances . . . ." gonzalez, 545 under rule 60(b)(6). in construing mr. west's pro se rule 60(b)(6) motion compulsory process . . . by the trial court's exclusion of evidence of [his] post- guilty. the court sentenced mr. west to life imprisonment without the possibility challenge the procedural bar in either his objections to the magistrate judge's application; or (2) challenges a defect in the integrity of the federal habeas west claims that the application of this procedural bar deprived him of due had adequate notice of this procedural bar and that he had the opportunity to petitioner's claim on the merits, "[t]he petitioner must demonstrate that prospectively is no longer equitable; or (6) any other reason pro se, seeks a certificate of appealability ("coa") to challenge the district 60(b)(6) "is extraordinary and may only be granted in exceptional circumstances," of rule 60(c), buck, 281 f.3d at 1344, "[i]n the interest of finality, the concept of the state court record, and (2) apply the applicable federal law with regard to the on april 22, 1997, mr. west filed a petition for a writ of habeas corpus other reason that justifies relief." fed. r. civ. p. 60(b)(6); accord davis v. kan. delay between judgment and a rule 60(b) motion was not reasonable). despite process and constituted a defect in the integrity of the habeas proceedings. ry. co., 490 f.3d 1224, 1229 (10th cir. 2007). (10th cir. 1979) ("if voidness is found, relief is not a discretionary matter; it is west was not entitled to relief under rule 60(b)(6) because his motion was 545 u.s. at 535). a litigant also may not premise its rule 60(b)(6) motion on one claims debatable or wrong." slack v. mcdaniel, 529 u.s. 473, 484 (2000). when dismissed the matter. davis, 507 f.3d at 1248 (internal quotation marks omitted), which `"rarely occur west claims that reasonable jurists could debate whether the district court relief under rule 60(b)(4) and/or (6)." (emphasis omitted)). thus, mr. west has defendant-appellant douglas west, an oklahoma state prisoner appearing -9- the district court correctly denied mr. west's rule 60(b)(6) motion on procedural the district court denied mr. west's rule 60(b) motions, without resolving his petition for a writ of habeas corpus pursuant to 28 u.s.c. � 2254 (the rule 60(b)(4) requires a court to grant relief if "the judgment is void." affirmed mr. west's conviction on direct appeal. the occa subsequently denied the state initially raised this procedural bar in its response to mr. mr. west filed these motions to alter or amend the district court's denial of 28 u.s.c. � 2254. 28 u.s.c. � 2244(b); in re lindsey, 582 f.3d 1173, 1174 (10th contrast, a "true" rule 60(b) motion "(1) challenges only a procedural ruling of no. 09-7090 liberally, however, we find that he argues essentially the same grounds for relief jerome a. holmes party; (4) the judgment is void; (5) the judgment has been tenth circuit oklahoma. the magistrate judge recommended the denial of the petition. on in this action, the district court denied mr. west's rule 60(b)(6) motion on argument, but he also argued against its application to his claims before the under both rule 60(b)(4) and rule 60(b)(6). e.g., r. at 497 ("this court acted in could not have been discovered in time to move for a new trial procedural grounds as untimely.3 tenth circuit.2 for its persuasive value consistent with fed. r. app. p. 32.1 and 10th cir. r. on january 11, 1993, the oklahoma court of criminal appeals ("occa") mr. west filed a pro se application for a coa and opening brief. we pursuant to federal rule of civil procedure 60(b)(4) and (6). he filed a second, to alter or amend the district court's judgment dismissing his habeas petition, coa "only if the applicant has made a substantial showing of the denial of a u.s. at 528. the six grounds that may justify relief are as follows: newly discovered evidence that, with reasonable diligence, void. fed. r. civ. p. 60(b). we review the denial of a rule 60(b)(4) motion de novo, more than eight years later, on january 20, 2009, mr. west filed a motion killed mr. mercer as the decedent entered the convenience store operated by mr. in this action, the district court denied mr. west's rule 60(b)(4) motion whether the petition states a valid claim of the denial of a constitutional right and discussion constitutional claim regarding the exclusion of evidence of his post-traumatic -6- not waived this claim on appeal. nevertheless, mr. west failed to raise a 2006) (citing miller-el v. cockrell, 537 u.s. 322, 336 (2003)). we will issue a pre-requisite to our review." clark v. oklahoma, 468 f.3d 711, 713 (10th cir. ii. certificate of appealability had adequate notice and opportunity to be heard on his claim and failed to essentially identical motion on february 19, 2009. in these motions, mr. west true 60(b) motion."). mr. west also alleges that this procedural bar was a defect petitioner's claim in ground seven and petitioner is therefore entiteld [sic] to constitutional right." 28 u.s.c. � 2253(c)(2). when the district court denies the 32.1. after examining the briefs and the appellate record, this three-judge panel affirmed and adopted this recommendation after a "full consideration of the -4- 2 to appeal the denial of his rule 60(b)(6) motion). spitznas, 464 f.3d at 1216 ("[a] motion asserting that the federal district court "rule 60(b) allows a party to seek relief from a final judgment, and request grounds. congress restricts the filing of second or successive habeas petitions under motion "within a reasonable time" after entry of the judgment or order. fed. r. "if the district court correctly treated the motion . . . as a `true' rule 60(b) respondent-appellee. united states court of appeals under rule 59(b); (3) fraud (whether previously called intrinsic reasonable jurists would find the district court's assessment of the constitutional untimely and failed to articulate any grounds for relief. thus, reasonable jurists could not debate the district court's incorrectly dismissed a petition [because of a] procedural bar . . . constitutes a satisfied, released or discharged; it is based on an earlier petition if it in substance or effect asserts or reasserts a federal basis for relief within the "reasonable time" contemplated by rule 60(c)(1). fed. r. civ. p. "petition"). we exercise jurisdiction pursuant to 28 u.s.c. �� 1291 and 520�21 (1972); van deelen v. johnson, 497 f.3d 1151, 1153 n.1 (10th cir. 2007). district court concluded that mr. west "failed to articulate his grounds for relief" rule 60(b)(6) allows a party to seek relief from a final judgment for "any douglas west, 60(c)(1); see, e.g., sorbo v. united parcel serv., 432 f.3d 1169, 1178 (10th cir. no justification for the delay. thus, reasonable jurists could not debate whether merits-based attack on the disposition of a prior habeas motion." id. at 1215�16 november 6, 1996, the occa affirmed this denial of relief. based on our review of the record, the magistrate judge conducted an (citation omitted) (citing gonzalez v. crosby, 545 u.s. 524, 532 n.4, 538 (2005)). order denying certificate of appealability* dep't of corr., 507 f.3d 1246, 1248 (10th cir. 2007). although rule 60(b)(6) is williams, 484 f.3d 1262, 1264 (10th cir. 2007) (applying this standard when in the integrity of the habeas proceedings because he was deprived of due process west's habeas petition. mr. west was not only aware of the procedural bar marks omitted). under rule 60(b)(4), a litigant was afforded due process if in this action, the motions are "true" rule 60(b) motions rather than second from the petitioner's underlying conviction." spitznas, 464 f.3d at 1215. by -7- cognizable claim under rule 60(b)(6). mr. west requests relief under rule september 27, 2000, the district court adopted the recommendation and denied the applied a procedural bar to deny his claim regarding post-traumatic stress 1 court's denial of his motions under federal rule of civil procedure 60(b)(4) and circuit judge -10- determined unanimously that oral argument would not be of material assistance in -5- and/or (6) to alter or amend j., filed feb. 19, 2009) (emphasis omitted). mr. construe these pro se filings liberally. see haines v. kerner, 404 u.s. 519, inconsistent with due process of law." buck, 281 f.3d at 1344 (internal quotation the case is therefore ordered submitted without oral argument. (6).1 setting aside a judgment on voidness grounds is narrowly restricted." v. t. a., the habeas court which precluded a merits determination of the habeas ct. order, filed sept. 27, 2000). furthermore, mr. west does not dispute that he for the foregoing reasons, we deny mr. west's application for a coa filed mr. west filed this motion more than eight this order is not binding precedent, except under the doctrines of stress disorder. mr. west argues that the district court deprived him of a or successive petitions. mr. west asserts that the district court erroneously pleadings filed in this case and the applicable legal authorities." r. at 391 (dist. "meaningful hearing" because it did not "(1) make an independent assessment of ron champion, warden, in its procedural ruling." id. (emphasis added); accord omar-muhammad v. issue on appeal to the tenth circuit. a. rule 60(b)(4) oklahoma state court. the case was tried to a jury, which returned a verdict of i. second or successive habeas petition or "true" rule 60(b) motion that justifies relief. arising from the sale of a used car. on january 29, 1990, mr. west shot and marks omitted), it remains subject to certain limitations. relief under rule february 2, 2010 spitznas, 464 f.3d at 1225 n.11. finally, a litigant must file a rule 60(b)(6) of the grounds enumerated in rules 60(b)(1)-(5). gonzalez, 545 u.s. at 528; at 4. 3 oppose its application before the magistrate judge, the district court, and the 60(b)(6) because the district court violated his due process rights, which is the (d.c. no. cv-97-00243-jhp-kew) clerk of court mandatory."). although rule 60(b)(4) is not limited by the timeliness provisions west. on february 20, 1990, mr. west was charged with first-degree murder in on september 23, 2009, the district court denied the motions. the district on procedural grounds and does not assert a federal basis for the district court to buck, 281 f.3d at 1344 (internal quotation marks omitted). motion in order to determine whether it represents a second or successive petition, 2253(c)(1)(a), deny the request for a coa, and dismiss this matter. because mr. west was afforded due process and the judgment was not void. mr. petition. the tenth circuit denied mr. west's application for a coa and united states court of appeals disorder, without reaching the merits. see gonzalez, 545 u.s. at 532 n.4; he "was denied his sixth and fourteenth amendment constitutional rights to civ. p. 60(c)(1). a `true' rule 60(b) motion, or a mixed motion." spitznas v. boone, 464 f.3d proceeding, provided that such a challenge does not itself lead inextricably to a deciding whether a � 2254 petitioner was entitled to a coa that would enable him tenth circuit elisabeth a. shumaker motion and denied it, we will require the movant to obtain a [coa] before "fundamental procedural prerequisites�particularly, adequate notice and -2- allegations." spitznas, 464 f.3d 1225 n.11; see gonzalez, 545 u.s. at 528. pursuant to 28 u.s.c. � 2254 in the u.s. district court for the eastern district of (...continued) the determination of this matter. see fed. r. app. p. 34(a); 10th cir. r. 34.1(g). fed. r. civ. p. 60(b)(4); see v. t. a., inc. v. airco, inc., 597 f.2d 220, 224 n.8