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. _________________________________

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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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