United States v. Steele, No. 18-3196 (10th Cir. 2019)
Annotate this Case
Download PDF
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, FILED United States Court of Appeals Tenth Circuit January 22, 2019 Elisabeth A. Shumaker Clerk of Court Plaintiff - Appellee, v. DON MILTON STEELE, No. 18-3196 (D.C. Nos. 2:14-CV-02512-JWL & 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offenses, as well as possession of a firearm in furtherance of a drug-trafficking crime in violation of * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
