Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.ronald Daniel Kelly, Plaintiff-appellant, v. Jack Cowley, Warden, Defendant-appellee, 940 F.2d 1538 (10th Cir. 1991)

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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

On July 25, 1990, this court issued its Order and Judgment affirming the dismissal of a petition for habeas corpus filed by the petitioner herein, Ronald Daniel Kelly. At one part of the Order and Judgment we stated that the district court may have been wrong in connection with its ruling on procedural default, but we held that Kelly stated no violation of his constitutional rights on the merits. We held on both procedural and merits grounds, stating: "Petitioner's challenge must fail on this basis [the merits] also." (Emphasis supplied). On December 14, 1990, Kelly filed in this action a new proceeding in the district court entitled "Independent Action For Relief From Judgment Under Rule 60(b)." In the proceeding Kelly states that the district court should vacate its September 27, 1989, order dismissing Kelly's habeas action, on the ground that this court had declared that the district court was in error on its procedural bar analysis. Kelly then seeks to reopen all of the issues raised in his first habeas corpus petition, with some additional embellishment.

We find the decision of the district court dismissing this newest proceeding by Kelly to be correct. Said proceeding misconstrues the opinion of this court, misapplies Fed. R. Civ. P. 60(b), violates the rules with respect to rehearing of decisions of this court, and is a transparent attempt to circumvent the law with respect to successive and abusive habeas petitions.

Kelly's motion for a certificate of probable cause is DENIED. The appeal is DISMISSED. The mandate shall issue forthwith.

DISMISSED.