UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FLOYD BLACKBURN,

Petitioner-Appellant,

v.

JOE WILLIAMS, Warden, Lea County Correctional Facility; GARY JOHNSON, Governor, State of New Mexico; ROBERT PERRY, Secretary of Corrections; NEW MEXICO CORRECTIONS DEPARTMENT, State of New Mexico; WACKENHUT CORRECTIONS CORPORATION, a Florida Corporation; LEA COUNTY, New Mexico; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees.

No. 01-2104

(D.C. No. CIV-00-295 BB/LCS)

(D. N.M.)

ORDER AND JUDGMENT*

Before KELLY, BALDOCK, and LUCERO, Circuit Judges.

Petitioner Floyd Blackburn, proceeding pro se, appeals the district court's denial of his motion to alter or amend the judgment filed in his habeas proceeding brought pursuant to 28 U.S.C. § 2241. The district court dismissed petitioner's § 2241 petition for failure to exhaust state court remedies.1 Erroneously believing that the district court still had jurisdiction over his § 2241 petition,2 petitioner thereafter filed a motion for summary judgment. The district court construed the summary judgment motion as one for relief from the judgment under Fed. R. Civ. P. 60(b) and denied it. Petitioner then filed the motion at issue here, arguing that the district court erred in treating his summary judgment motion as one seeking relief from judgment under Rule 60(b).

Before petitioner can proceed on appeal, he must obtain a certificate of appealability from this Court under 28 U.S.C. § 2253(c). To do so, petitioner must show that jurists of reason would both "find it debatable whether the district court was correct in its procedural ruling" and "find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because Blackburn did not have an action pending in the district court upon which the court could grant summary judgment, the district court correctly construed his motion for summary judgment as a Rule 60(b) motion. Based on our review of the record, we conclude that petitioner has not made the required showing under Slack.

Accordingly, petitioner's application for a certificate of appealability is DENIED and the appeal is DISMISSED. Petitioner's "Motion for a Writ of Mandamus," which seeks to compel respondents to file a brief in this appeal, is DENIED.

Entered for the Court

Carlos F. Lucero

Circuit Judge