No. 5:18-CV-03264-JWL) (D. Kan.)
McHUGH, KELLY, and MORITZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L. MORITZ, CIRCUIT JUDGE
El-Amin, a habeas petitioner proceeding pro se,
seeks to appeal the district court's order denying him
relief from judgment under Federal Rule of Civil Procedure
60(b). To do so, El-Amin must first obtain a certificate of
appealability (COA). See 28 U.S.C. §
2253(c)(1); Eldridge v. Berkebile, 791 F.3d 1239,
1243-44 (10th Cir. 2015) (holding that we treat individuals
convicted in District of Columbia Superior Court as state
prisoners who must obtain COA to appeal denial of federal
habeas relief); Spitznas v Boone, 464 F.3d 1213,
1217-18 (10th Cir. 2006) (holding that COA is required to
appeal district court's order denying Rule 60(b) motion
in habeas proceeding). For the reasons explained below, we
deny El-Amin's request for a COA and dismiss this matter.
2014, a jury convicted El-Amin of armed robbery. During the
trial, the judge opted not to instruct the jury on the
lesser-included offense of assault with a dangerous weapon.
The trial judge sentenced El-Amin to 120 months in prison.
El-Amin appealed, arguing in part that the trial judge should
have given the lesser-included-offense instruction. The
District of Columbia Court of Appeals (DCCA) rejected that
argument and affirmed. See Elamin v. United States,
No. 14-CF-1134 (D.C. May 11, 2017) (unpublished).
then filed this 28 U.S.C. § 2254 petition in federal
district court, raising two ineffective assistance of counsel
(IAC) claims. He alleged that his appellate counsel failed to
(1) challenge the district court's decision not to
instruct the jury on a lesser-included offense and (2) argue
that the District of Columbia improperly charged him with the
single crime of armed robbery under two different statutes,
D.C. Code § 22-2801 and § 22-4502.
district court rejected El-Amin's first IAC claim because
it was indisputable that his appellate attorney did raise a
lesser-included-offense argument; indeed, the DCCA addressed
and rejected that argument. Next, the district court
concluded that El-Amin's second IAC claim was unexhausted
and procedurally barred because El-Amin failed to present it
to the District of Columbia courts. See §
2254(b)(1)(A) (requiring petitioner to exhaust state-court
remedies before federal court can consider habeas petition).
It also rejected this claim on the merits because the DCCA
has held that it's proper to charge a defendant with the
single crime of armed robbery under both § 22-2801
(which establishes the elements of robbery) and §
22-4502 (which establishes an additional penalty for
committing crime while armed). See Fadero v. United
States, 180 A.3d 1068, 1073 (D.C. 2018) (explaining that
§ 22-4502 can combine with other sections of D.C. Code
to form "single, chargeable offense"). Thus, the
district court denied El-Amin's § 2254 petition and
declined to issue a COA. El-Amin sought to appeal the denial
of his § 2254 petition, but we denied El-Amin's
request for a COA. See Order, El-Amin v.
English, No. 19-3063 (10th Cir. Sept. 13, 2019).
addition to attempting to appeal the denial of his habeas
petition, El-Amin filed a Rule 60(b) motion in district
court, seeking relief from the district court's judgment.
See Spitznas, 464 F.3d at 1215-16 (holding that
habeas petitioner can file Rule 60(b) motion to challenge
"a procedural ruling of the habeas court" or
"a defect in the integrity of the federal habeas
proceeding"). In particular, El-Amin asserted that the
district court erred in holding that his second IAC claim was
unexhausted and therefore procedurally defaulted. He further
asserted a defect in the habeas proceeding, contending that
the district court failed to address his second IAC claim.
district court denied relief. It noted that relief under Rule
60(b) requires "extraordinary circumstances" that
"will rarely occur in the habeas context." R. vol.
2, 37-38 (second quoting Gonzalez v. Crosby, 545
U.S. 524, 535 (2005)). And it concluded that El-Amin
didn't show any extraordinary circumstances or otherwise
meet any of the Rule 60(b) standards for relief from
judgment. Thus, the district court denied the motion and
declined to issue a COA.
now seeks a COA from this court. We may issue a COA only if
El-Amin "has made a substantial showing of the denial of
a constitutional right." § 2253(c)(2). When, like
here, a ruling on a Rule 60(b) motion does not address the
merits of a petitioner's constitutional claims, we
"have 'applied the two-part COA standard the Supreme
Court first articulated' in Slack v. McDaniel,
[529 U.S. 473 (2000)]." Clay v. Smith, 365
Fed.Appx. 98, 102 (10th Cir. 2010) (unpublished) (quoting
Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir.
2007), abrogated in part on other grounds by Harbison v.
Bell, 556 U.S. 180 (2009)). That is, to obtain a COA,
El-Amin must show both "that jurists of reason would
find it debatable whether the [§ 2254] 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" on
the Rule 60(b) motion. Slack, 529 U.S. at 484;
see also Kellogg v. Strack, 269 F.3d 100, 104 (2d
Cir. 2001) (per curiam) (concluding that court will issue COA
on denial of Rule 60(b) motion if petitioner establishes both
that "jurists of reason would find it debatable whether
the underlying habeas 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 abused its discretion in denying the Rule
60(b) motion"). As explained below, we begin (and
ultimately end) our analysis with the procedural half of this
standard, concluding that El-Amin fails to establish that the
district court's Rule 60(b) ruling was debatable.
Rule 60(b), a court may relieve a movant from a final
judgment for a variety of reasons, including "any . . .
reason that justifies relief." Fed.R.Civ.P. 60(b). Yet,
as the district court noted in this case, "[r]elief
under Rule 60(b) is discretionary and is warranted only in
exceptional circumstances." Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th Cir. 1991). And we
review a district court's order denying relief under Rule
60(b) for abuse of discretion. Id. at 1242-43. Thus,
when we combine the abuse-of-discretion standard with the
procedural portion of the COA standard from Slack,
"the question . . . is whether a jurist of reason would
find it debatable that the district court abused its
discretion" when it rejected the two arguments in
El-Amin's Rule 60(b) motion. Bird v. Wyoming Attorney
Gen., 2019 WL 2879908, at *2 (10th Cir. July 3, 2019)
primary argument on appeal repeats the primary argument in
his Rule 60(b) motion: he contends that the district court
erred when it ruled that his second IAC claim was unexhausted
and thus procedurally defaulted. In support, he cites
County Court of Ulster County v. Allen, 442 U.S. 140
(1979), and Crease v. McKune, 189 F.3d 1188 (10th
Cir. 1999). But these two cases are inapposite. Both involve
issues of procedural bar that turned on whether a state court
decided an issue on procedural grounds rather than on the
merits. See Allen, 442 U.S. at 148-49;
Crease, 189 F.3d at 1192. But the district
court's ruling here turned on exhaustion, which is about
whether a petitioner presented a particular argument to the
state court. See, e.g., Bland v. Sirmons,
459 F.3d 999, 1011 (10th Cir. 2006) (noting that to exhaust
claim, petitioner must "fairly present" claim to
state court (quoting Picard v. Connor, 404 U.S. 270,
275 (1971))). And El-Amin nowhere argues that he presented
his second IAC claim to the District of Columbia courts.
Thus, the exhaustion argument in El-Amin's Rule 60(b)
motion lacks merit, and reasonable jurists therefore could
not debate whether the district court abused its discretion
when it rejected this argument and denied relief under Rule
60(b). See Slack, 529 U.S. at 484.
also briefly asserts, as he did in his Rule 60(b) motion,
that the district court failed to address his claim that
appellate counsel was ineffective in failing to challenge the
statutory basis for his conviction. But the district court
obviously ruled on this claim: it found that El-Amin failed
to exhaust this claim, and it further denied this claim on
the merits. Thus, El-Amin's second argument also fails to
establish that reasonable jurists could debate ...