Filed: Jul. 13, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6878 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MADISON DUANE MCRAE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:04-cr-00223-RJC-DCK-2; 3:08-cv-00219-RJC) Argued: January 28, 2015 Decided: July 13, 2015 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Reversed and remanded by published opinion. Ju
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-6878 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MADISON DUANE MCRAE, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:04-cr-00223-RJC-DCK-2; 3:08-cv-00219-RJC) Argued: January 28, 2015 Decided: July 13, 2015 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Reversed and remanded by published opinion. Jud..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6878
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MADISON DUANE MCRAE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:04-cr-00223-RJC-DCK-2; 3:08-cv-00219-RJC)
Argued: January 28, 2015 Decided: July 13, 2015
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Reversed and remanded by published opinion. Judge Gregory wrote
the majority opinion, in which Judge Wynn joined. Judge Wynn
wrote a separate concurring opinion. Judge Motz wrote a
dissenting opinion.
ARGUED: Robert Leonard Littlehale, III, PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, Washington, D.C., for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF:
William Blaise Warren, Molissa H. Farber, Diana V. Valdivia,
Nathaniel D. Cullerton, Washington, D.C., Alexandra R. Clark,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New York, New
York, for Appellant. Anne M. Tompkins, United States Attorney,
Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
GREGORY, Circuit Judge:
Appellant Madison Duane McRae was convicted of four drug-
related charges on September 14, 2005. After an unsuccessful
appeal and a pro se attempt to have his sentence vacated,
corrected, or set aside under 28 U.S.C. § 2255, McRae filed a
pro se motion with the district court entitled “Motion for
Relief from Judgment 60(b)(1)(3)(6).” The district court
dismissed the motion for lack of subject-matter jurisdiction,
finding that it constituted an impermissible successive habeas
petition rather than a proper Rule 60(b) motion. McRae appeals
this judgment.
The threshold issue before us is whether we can review the
district court’s categorization of McRae’s motion without first
issuing a Certificate of Appealability (“COA”) pursuant to 28
U.S.C. § 2253(c)(1)(B). We hold that recent Supreme Court
jurisprudence has made clear that § 2253(c) does not apply in
this particular situation. Because we find that McRae’s motion
constitutes a mixed Rule 60(b)/§ 2255 motion, we remand to the
district court to afford McRae the opportunity to decide whether
to abandon his improper claim or to proceed with a successive
habeas petition.
2
I.
A.
In 2004, Immigration and Customs Enforcement (“ICE”) Agent
Blaine Crum began investigating McRae’s co-defendant,
Rodney Green, after he became suspicious of drug trafficking
activity. On August 21, 2004, Agent Crum learned that Green and
McRae had traveled to Jamaica, as had Green’s connection
Andrea Spears. Two other women, Atonia Bailey and Latia Harris,
had flown to Jamaica as well. Although the travelers flew out
of two different airports (Green and McRae from one and Spears,
Harris, and Bailey from the other), all of their tickets had
been purchased using cash at the Columbus, Ohio airport.
When Spears, Harris, and Bailey returned from Jamaica they
were questioned at the Charlotte Douglas International Airport
by customs agents, who seized cocaine and marijuana from Harris
and Bailey. McRae and Green were pulled aside by customs agents
at the Memphis International Airport for secondary examinations;
Agent Crum sat in on their interviews.
After the interviews, Agent Crum called the Charlotte
airport and learned that Bailey and Harris had been transporting
controlled substances. Bailey had also identified McRae using a
photograph. Based on this information, Agent Crum arrested
McRae and Green. He obtained a search warrant for, among other
things, the information in McRae’s cell phone, and retrieved
3
McRae’s text messages, list of contacts, and record of recent
calls. Agent Crum learned that the number labeled “Tnia” was
Bailey’s, and that McRae and Green had contacted each other just
before leaving for Jamaica.
In February 2005, McRae was charged with four drug-related
offenses. At the ensuing trial, Green, Bailey, Harris, and
Spears testified against McRae. According to Green, he began
distributing cocaine to McRae in 2004 and later agreed to help
McRae import cocaine from Jamaica. Green testified that, after
he and McRae successfully imported a kilogram of cocaine in
August 2004, Green and McRae arranged for Spears, Harris, and
Bailey to travel to Jamaica. McRae purchased everyone’s
tickets, and Green bought 1.5 kilograms of cocaine while in
Jamaica. Green also gave McRae Ace bandages and duct tape for
strapping the cocaine onto Bailey and two smaller packages for
Harris and Spears to insert into their vaginas.
According to Bailey, in mid-August 2004 McRae offered her
$500 to go to Jamaica and “bring something back.” J.A. 182.
After initially agreeing Bailey changed her mind, but McRae said
since they already had the tickets they could still go to
Jamaica and “kick it.” J.A. 183-84. Bailey testified that when
she got out of the shower on their last morning in Jamaica her
ticket and birth certificate were missing. McRae told her that
4
if she wanted to get home she would have to transport packages
of cocaine, which she did.
Spears testified that she traveled to Jamaica with Green
and a woman named Cheryl Turner in January 2004 and transported
500 Ecstasy pills to the United States. In the summer of 2004
Harris asked Spears to go back to Jamaica with Harris and Green.
Spears initially declined, but agreed when Green told her this
trip would not be like the first. According to Spears, on their
last morning in Jamaica she got out of the shower and found a
package of drugs lying on her clothes. After arguing with Green
she inserted the package into her vagina, but she removed it
before leaving.
According to Harris, she traveled to Jamaica at Green’s
invitation, and when she got out of the shower on their last
morning there, a package of drugs was lying next to her clothes.
Following Green’s instructions, she inserted the package into
her vagina.
Several law enforcement officers also testified at McRae’s
trial. Agent Crum testified that during McRae’s interview at
the airport, McRae said that he worked in real estate and that
Green had paid for his trip to Jamaica. Agent Crum asked McRae
if he could look through his cell phone. He found a contact
labeled “Tnia,” and asked McRae if that contact was Atonia
Bailey; McRae denied that it was. At some point McRae withdrew
5
his consent for Agent Crum to search the phone, and Agent Crum
did not go through the phone again until he obtained a warrant.
ICE Agent Robert Mensinger, who assisted Agent Crum with
his investigation, testified about a conversation he had with
McRae at the airport. According to Agent Mensinger, McRae asked
whether he could do anything to help his situation. Agent
Mensinger asked McRae if he had been advised of his rights, to
which McRae responded, “Yeah, I know my rights.” J.A. 572.
Agent Mensinger did not provide McRae with an official Miranda
form, but he did advise McRae of his right to remain silent and
his right to an attorney. As Agent Mensinger started to leave
the room, McRae began talking about the trip to Jamaica.
According to Mensinger, McRae initially said that he had not
seen Bailey for several weeks, but later changed his story and
admitted to being with her as well as Spears, Harris, and Green
in Jamaica. He stated that he had seen two kilograms of cocaine
in the bungalow in Jamaica, and told Agent Mensinger about how
Green had strapped the cocaine onto “the girls.” J.A. 574-75.
McRae’s counsel objected to both Agent Crum’s and Agent
Mensinger’s testimony. As Agent Crum began testifying about his
interview with Green and McRae at the airport, counsel asserted
that there was no corroborative evidence of the statements
allegedly made by McRae and no waiver-of-rights form, and moved
for voir dire. The district court denied the motion, stating
6
that counsel could accomplish his goals on cross-examination.
Similarly, counsel requested the opportunity to voir dire Agent
Mensinger. The court denied the motion, but directed the
government to lay a foundation to allow the court to determine
whether there had been a violation of rights. Counsel had not
moved to suppress testimony from either agent. Prior to jury
deliberations, the court explained its denial of counsel’s voir
dire motions in greater detail. It noted that McRae’s counsel
had waived the right to a suppression hearing by failing to file
a pre-trial motion to suppress, but found in the alternative
that the testimony in question “was credible, the appropriate
warnings were given, and . . . any statements made by the
defendant were knowing and voluntary.” J.A. 655-56.
B.
After a three-day trial, on September 14, 2005, a jury
convicted McRae of four drug-related charges. On May 25, 2006,
the district court sentenced McRae to 210 months of imprisonment
for each of the four charges, to run concurrently. McRae
appealed, but this Court affirmed his conviction and sentence.
United States v. McRae, 235 F. App’x 968 (4th Cir. 2007) (per
curiam) (unpublished). On May 12, 2008, McRae filed a petition
under 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence. Among other things, McRae claimed ineffective
assistance of trial and appellate counsel and prosecutorial
7
misconduct. On July 19, 2010, without holding an evidentiary
hearing, the district court granted the government’s motion for
summary judgment. This Court subsequently held that McRae could
not appeal absent a COA, which the Court declined to issue.
United States v. McRae, 450 F. App’x 284 (4th Cir. 2011) (per
curiam) (unpublished).
After filing unsuccessful petitions for rehearing and
rehearing en banc, and a writ for certiorari, McRae filed a pro
se motion entitled “Motion for Relief from Judgment
60(b)(1)(3)(6).” His motion highlighted five alleged errors in
the district court’s § 2255 proceedings: 1) the district court,
relying on the government’s memorandum, falsely stated that the
court had not mentioned counsel’s failure to move to suppress
when denying counsel’s motions for voir dire; 2) the district
court mistakenly stated that McRae admitted to knowing Bailey;
3) the district court did not consider every statement made by
McRae in determining whether his counsel was ineffective for
failing to move to suppress; 4) the district court mistakenly
attributed Agent Mensinger’s testimony that McRae knew his
rights to Agent Crum; and 5) the district court misquoted Agent
Mensinger as telling McRae an attorney would be appointed for
him if he could not afford one. The court dismissed McRae’s
Rule 60(b) motion for lack of subject-matter jurisdiction,
holding that the motion was a successive § 2255 motion for which
8
he had failed to obtain preauthorization under 28 U.S.C.
§ 2244(b)(3), and declining to issue a COA. McRae timely
appealed, and this Court appointed counsel to address the
question “whether, in light of Reid v. Angelone, 369 F.3d 363
(4th Cir. 2004), and Gonzales v. Crosby,
545 U.S. 524 (2005),
McRae’s appeal of the district court’s dismissal of his Rule
60(b) motion as an unauthorized successive § 2255 motion is
subject to the certificate of appealability requirement.”
II.
On appeal, McRae argues that the district court erred in
treating his motion as a successive habeas petition rather than
a “mixed” Rule 60(b)/§ 2255 motion, and that this Court may
review the district court’s determination without first issuing
a COA. “[O]ur review is de novo where a district court
construes a motion as a successive § 2255 motion and dismisses
it for failure to obtain prefiling authorization from a court of
appeals.” United States v. MacDonald, 641 F.3d 596, 609 (4th
Cir. 2011).
Rule 60(b) allows a court to relieve a party from a final
judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
9
extrinsic), misrepresentation, or other misconduct by
an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been
reversed or otherwise vacated; or applying it
prospectively is no longer equitable; or (6) any other
reason that justifies relief.
Fed. R. Civ. P. 60(b). Rule 60(b) applies to § 2255
proceedings, but only “to the extent that [it is] not
inconsistent with” applicable statutory provisions and rules.
Rules Governing Section 2255 Cases, Rule 12, 28 U.S.C. foll.
§ 2255. Therefore, a Rule 60(b) motion in a habeas proceeding
that attacks “the substance of the federal court’s resolution of
a claim on the merits” is not a true Rule 60(b) motion, but
rather a successive habeas petition. Gonzales, 545 U.S. at 531-
32. A successive habeas petition may not be filed in district
court without preauthorization from a court of appeals under
§ 2244(b)(3)(A). A Rule 60(b) motion that challenges “some
defect in the integrity of the federal habeas proceedings,”
however, is a true Rule 60(b) motion, and is not subject to the
preauthorization requirement.
Id.
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, a court of appeals may not
review “the final order in a proceeding under section 2255”
unless a circuit justice or judge issues a COA. 28 U.S.C.
10
§ 2253(c)(1)(B). 1 A judge may issue a COA “only if the applicant
has made a substantial showing of the denial of a constitutional
right.” Id. This standard varies slightly depending on whether
the district court denied the applicant’s habeas petition on the
merits or on procedural grounds. If the denial was on the
merits, “[t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). If, on the other hand, the denial was
procedural, the petitioner must show “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.”
Id. (emphasis added).
In Reid v. Angelone, this Court held that the § 2253(c) COA
requirement applies to an order denying a Rule 60(b) motion in a
habeas action. 2 369 F.3d 363, 369 (4th Cir. 2004). The Court
reached this conclusion by examining the plain language of
§ 2253(c).
Id. at 367. First, the Court determined that
1 An identical requirement applies to “the final order in a
habeas corpus proceeding [under § 2254] in which the detention
complained of arises out of process issued by a State court.”
28 U.S.C. § 2253(c)(1)(A).
2 Reid dealt with a § 2254 proceeding, but the analysis is
applicable to § 2255 proceedings as well.
11
although § 2253(c) applies only to one order in any given habeas
proceeding (“the final order”), “a single habeas action may
embrace multiple habeas ‘proceedings’ . . . .” Id. at 367-68.
Second, the Court found that a proceeding involving a Rule 60(b)
motion is necessarily a proceeding distinct from the one giving
rise to the underlying challenged judgment.
Id. at 368. And
finally, the Court reasoned that a Rule 60(b) proceeding
challenging the judgment in a habeas proceeding is itself a
“habeas corpus proceeding” for the purposes of § 2253(c).
Id.
at 369. After analyzing the text of the statute, the Reid Court
also found that subjecting Rule 60(b) motions to the COA
requirement is consistent with the policy concerns underlying
the requirement.
Id. at 369-70.
The Reid Court issued a COA, but then dismissed the
petitioner’s Rule 60(b) motion as an improper successive habeas
petition. Id. at 374-75. In doing so, the Court acknowledged
the apparent incongruity of granting a COA only to hold that the
district court lacked jurisdiction.
Id. at 374 n.7. However,
the panel found itself to be constrained by the statutory text
of the COA requirement, which does not include an explicit
exception for “questions of subject-matter jurisdiction.”
Id.,
see also Jones v. Braxton,
392 F.3d 683, 688-89 (4th Cir. 2004)
(holding that an order dismissing a habeas petition as an
12
unauthorized successive petition is subject to the COA
requirement).
Subsequent Supreme Court cases have made clear that we need
not accept this incongruity in every situation. Based on the
Court’s reasoning in Gonzales, 545 U.S. 524, and Harbison v.
Bell,
556 U.S. 180 (2009), we hold that the COA requirement in
§ 2253(c) allows us to review, without first issuing a COA, an
order dismissing a Rule 60(b) motion as an improper successive
habeas petition.
In Gonzales, the Supreme Court considered whether Rule
60(b) motions in habeas cases “are subject to the additional
restrictions that apply to ‘second or successive’ habeas corpus
petitions” under AEDPA. 545 U.S. at 526; see also 28 U.S.C.
§ 2244(b). It concluded that “true” Rule 60(b) motions, motions
that challenge “not the substance of the federal court’s
resolution of a claim on the merits, but some defect in the
integrity of the federal habeas proceedings,” should not be
treated as successive habeas petitions.
Id. at 531-33. Central
to this holding is the principle that, in order to preserve the
“unquestionably valid role” Rule 60(b) motions play in habeas
cases, we must distinguish between true Rule 60(b) motions and
successive habeas applications. See
id. at 533-34.
Four years later, the Supreme Court held in Harbison that a
habeas petitioner appealing the denial of a motion to enlarge
13
the authority of appointed counsel need not obtain a COA. 556
U.S. at 183. In so holding, the Court noted that
§ 2253(c)(1)(A) 3 “governs final orders that dispose of the merits
of a habeas corpus proceeding -- a proceeding challenging the
lawfulness of the petitioner’s detention.”
Id. Because an
order denying a motion to enlarge authority of counsel “is not
such an order,” the Court reasoned that the COA requirement did
not apply.
Id.
In the wake of Harbison, other circuits have questioned the
continued validity of requiring a habeas petitioner to obtain a
COA before appealing a denial of a Rule 60(b) motion. In Wilson
v. Secretary Pennsylvania Department of Corrections, the Third
Circuit noted that its precedent in Morris v. Horn,
187 F.3d 333
(3d Cir. 1999), applied the COA requirement to an appeal of a
denial of a Rule 60(b) motion, but recognized that “the vitality
of that decision is undermined somewhat by the Supreme Court’s
decision in Harbison v. Bell.”
782 F.3d 110, 115 (3d Cir.
2015). And in Jones v. Ryan, the Ninth Circuit cited Harbison
for the proposition that “[w]ere [the petitioner] appealing the
3
Like the Fifth Circuit, “[w]e find no reason why the
Harbison Court’s reasoning would not be equally applicable to
§ 2253(c)(1)(B).” United States v. Fulton, 780 F.3d 683, 686
(5th Cir. 2015).
14
denial or dismissal of a valid Rule 60(b) motion, he may have
had no need for a COA.” 733 F.3d 825, 832 n.3 (9th Cir. 2013). 4
The Gonzales Court explicitly left open the question
whether orders denying Rule 60(b) motions in habeas cases are
exempt from § 2253(c)’s COA requirement. 5 545 U.S. at 535 & n.7.
And Harbison certainly bears on that question, recognizing a
link between the need for a COA and an order’s effect on the
merits of a habeas proceeding. For our purposes today, however,
we need not determine whether the COA requirement applies to all
orders denying Rule 60(b) motions. Our inquiry is much
narrower: whether we may address the district court’s
jurisdictional categorization of a Rule 60(b) motion as a
successive habeas petition without first issuing a COA.
4 At least one circuit excluded orders denying Rule 60(b)
motions from the COA requirement prior to Harbison. See Dunn v.
Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir. 2002).
5 It was this Court’s decision to issue a COA following a
denial on the merits that the Supreme Court indicated might have
been appropriate in Gonzalez. Specifically, the Supreme Court
stated that “[m]any Courts of Appeals have construed 28 U.S.C.
§ 2253 to impose an additional limitation on appellate review by
requiring a habeas petitioner to obtain a COA as a prerequisite
to appealing the denial of a Rule 60(b) motion.” 545 U.S. 524,
535 (emphasis added). Furthermore, the Gonzales Court did not
endorse Reid’s holding, but merely compared it favorably to the
“near-absolute bar” imposed by the Eleventh Circuit. See
id. at
535 n.7 (noting that Reid’s application of the COA requirement
to Rule 60(b) motions is “a more plausible and effective
screening requirement” (emphasis added)).
15
Gonzales mandates that we treat true Rule 60(b) motions
differently from successive habeas petitions, and Harbison holds
that only final orders with a sufficient nexus to the merits of
a habeas petition trigger the COA requirement. In other words,
Gonzales reveals the importance of distinguishing between Rule
60(b) motions and successive petitions, and Harbison opens the
door for us to ensure that the district court does so properly.
While a denial of a Rule 60(b) motion may be sufficiently
connected to the merits of the underlying habeas proceeding, a
dismissal is not. When a district court denies a Rule 60(b)
motion on the merits, it necessarily considers the merits of the
underlying habeas petition. Since a Rule 60(b) motion alleges
illegality in the conduct of a proceeding, considering the
merits of such a motion is, in and of itself, developing a nexus
to the actual habeas proceeding itself, and thus to the merits
of that proceeding. 6 The same cannot be said about a dismissal
of a Rule 60(b) motion on jurisdictional grounds. No one can
say right now whether McRae’s habeas proceeding was with merit
or without based on the district court’s dismissal.
6 For example, in a Rule 60(b) motion addressing the merits,
if a petitioner alleged that his conviction was based on perjury
committed by a testifying witness, that would call into question
the validity of his initial sentencing. Therefore, if a
district court denied that motion, it would have weighed the
merits of the motion, found they were lacking, and therefore
that the original habeas proceeding itself was valid.
16
A jurisdictional dismissal of a collateral attack on a
habeas proceeding is so far removed from the merits of the
underlying habeas petition that it cannot be said to be a “final
order[] . . . dispos[ing] of the merits of a habeas corpus
proceeding . . . challenging the lawfulness of the petitioner’s
detention.” See Harbison, 556 U.S. at 183. We therefore hold
that we need not issue a COA before determining whether the
district court erred in dismissing McRae’s purported Rule 60(b)
motion as an unauthorized successive habeas petition. 7
III.
The parties agree that the district court erred in
dismissing McRae’s motion as an impermissible successive § 2255
petition. See Appellee’s Br. 48-50; Appellant’s Reply Br. 1.
McRae argues, and the government agrees, that his first, second,
7 The facts of the case before us do not require us to
reexamine Reid in its entirety under Harbison and Gonzales.
Rather, we recognize today an abrogation of only a small part of
Reid’s reasoning. In that case, the lower court denied the
purported Rule 60(b) motion on the merits, and this Court raised
the jurisdictional issue sua sponte after granting a COA. See
369 F.3d at 373-75. The petitioner’s appeal challenged a type
of order different from the one at issue here: an order
addressing the merits of a Rule 60(b) motion, as opposed to an
order dismissing a Rule 60(b) motion as a successive habeas
application. Unless and until this Court concludes that
Harbison makes the COA requirement inapplicable to denials of
Rule 60(b) motions generally, Reid’s reasoning remains almost
entirely intact.
17
fourth, and fifth claims are properly categorized as Rule 60(b)
claims challenging the collateral review process, whereas his
third claim is a successive attack on his conviction over which
the district court did not have jurisdiction. This Court has
made clear that “[w]hen [a] motion presents claims subject to
the requirements for successive applications as well as claims
cognizable under Rule 60(b), the district court should afford
the applicant an opportunity to elect between deleting the
improper claims or having the entire motion treated as a
successive application.” United States v. Winestock, 340 F.3d
200, 207 (4th Cir. 2003). McRae was not given that opportunity
here.
The government contends, however, that we should affirm the
district court on other grounds. Specifically, it argues that
1) McRae’s Rule 60(b) claims were untimely, and 2) he failed to
make the requisite showing of extraordinary circumstances. 8
Under Rule 60(c)(1), a Rule 60(b)(1), (2), or (3) motion
must be made “no more than a year after the entry of the
judgment or order or the date of the proceeding.” Fed. R. Civ.
P. 60(c)(1). All four of McRae’s 60(b) claims fall into these
categories, but he filed his motion nearly 18 months after the
8
This showing is required only for Rule 60(b)(6) claims.
See Gonzales, 545 U.S. at 535; Aikens v. Ingram,
652 F.3d 496,
500 (4th Cir. 2011) (en banc).
18
district court denied his § 2255 motion. Therefore, the
government argues that McRae’s motion is time-barred. McRae
correctly asserts, however, that this issue should be resolved
by the district court in the first instance. In United States
v. Blackstock, this Court declined to affirm the dismissal of a
§ 2255 petition on the alternate ground that the petition was
time-barred. 513 F.3d 128, 133 (4th Cir. 2008). The panel,
noting that “AEDPA’s limitations period is an affirmative
defense,” held that “it would be improper . . . to affirm the
dismissal . . . on timeliness grounds” where the petitioner “has
had no opportunity to come forward with evidence that might
justify the application of equitable tolling or otherwise
establish that his claims are not time-barred.”
Id. Similarly,
the Rule 60(b) one-year filing deadline is an affirmative
defense. See Willis v. Jones, 329 F. App’x 7, 14 (6th Cir.
2009) (unpublished) (holding that “this Rule 60(b) time limit is
an affirmative defense, not a jurisdictional bar”). 9 Because the
issue of timeliness was not raised below, McRae has not had an
opportunity to make a case for timely filing. Therefore, the
proper course of action is to remand.
9 The court reasoned: “The Federal Rules, in and of
themselves, do not alter the jurisdiction of the district court.
And the Supreme Court has held that similar ‘claim-processing
rules’ are not jurisdictional.” Willis, 329 F. App’x at 14.
(internal citations omitted).
19
Similarly, the merits of McRae’s claims are best addressed
by the district court in the first instance. Although appellate
courts do sometimes proceed to the merits of miscategorized Rule
60(b) motions, see, e.g., Gonzales, 545 U.S. at 536, the
Winestock rule counsels in favor of
remand. 340 F.3d at 208-09;
see also
Reid, 369 F.3d at 375 (remanding and “tak[ing] no
position on whether Reid is in fact entitled to Rule 60(b)
relief”). At least one other Court of Appeals has taken this
approach as well. See Cox v. Horn,
757 F.3d 113, 124 (3d Cir.
2014) (“The grant or denial of a Rule 60(b)(6) motion is an
equitable matter left, in the first instance, to the discretion
of a district court.”). And as McRae points out, our
deferential standard of review regarding Rule 60(b) motions
recognizes the district court’s superior position for evaluating
the merits. See Consol. Masonry & Fireproofing, Inc. v. Wagman
Constr. Corp.,
383 F.2d 249, 251 (4th Cir. 1967) (“The
disposition of motions made under Rule[] . . . 60(b) is a matter
which lies largely within the discretion of the trial judge and
his action is not lightly to be disturbed by an appellate
court.”); see also Std. Oil Co. of Cal. v. United States,
429
U.S. 17, 19 (1976) (noting that “the trial court is in a much
better position to pass upon the issues presented in a motion
pursuant to Rule 60(b)” (internal quotation marks omitted)).
20
For these reasons, the merits of McRae’s 60(b) claims are best
left to the district court on remand.
IV.
We therefore reverse the judgment of the district court and
remand for further proceedings.
REVERSED AND REMANDED
21
WYNN, Circuit Judge, concurring:
Not wholly unlike the issue we confronted in Blakely v.
Wards, 738 F.3d 607, 617 (2013) (en banc), where the “nub of the
majority’s and dissent’s disagreement [was] the term dismiss,”
today, we disagree about whether dismissals and denials can be
conflated for purposes of Certificates of Appealability.
Fittingly to this case, in Blakely our dissenting colleague
viewed the word dismiss as having a very narrow and distinct
definition “learned in the first year of law school.”
Id. at
626 (Motz, J., dissenting). That narrow definition could be
overcome neither by “imprecise common usage” nor by “an
overbroad dictionary definition.”
Id. Applying that sentiment
here, there must be a distinction between “actual dismissals”
and denials.
Id. Otherwise, we run the risk of “improperly
restrict[ing] access to the courts.”
Id. at 624. With great
respect to the dissenting view, I must therefore agree with the
majority opinion.
22
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
The majority holds that a habeas petitioner need not obtain
a certificate of appealability (COA) before appealing a district
court’s “order denying [his] Rule 60(b) motion as an improper
successive habeas petition.” Because this conclusion runs
counter to binding circuit precedent, I respectfully dissent.
We only have jurisdiction to consider an appeal from a
“final order in a proceeding under” 28 U.S.C. § 2255 if “a
circuit justice or judge” issues a COA. See 28 U.S.C.
§ 2253(c)(1). In Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.
2004), we held that a district court’s denial of a habeas
petitioner’s Rule 60(b) motion constitutes such an order, and
thus we lack appellate jurisdiction to review it absent a COA.
In this case, after dismissing McRae’s Rule 60(b) motion as a
successive § 2255 petition, the district court declined to issue
a COA. And no member of this court has issued a COA. 1 Under
Reid, we therefore lack jurisdiction to hear McRae’s appeal and
so should dismiss it.
The majority eschews this straightforward application of
our precedent. My colleagues contend that two recent Supreme
1 There is good reason for this. McRae plainly fails to
qualify for a COA for he cannot make a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
23
Court cases combine to abrogate -- at least in part -- our
holding in Reid. I cannot agree.
First, the majority relies on Gonzalez v. Crosby, 545 U.S.
524 (2005), which did not even involve a COA. There, the
Supreme Court considered the interplay between Rule 60(b)
motions and the 28 U.S.C. § 2244(b)(3) requirement that habeas
petitioners obtain authorization from a court of appeals before
filing a successive habeas petition. See
id. at 530-36. The
Gonzalez Court held that if a Rule 60(b) motion “attacks . . .
the integrity of the federal habeas proceedings,” rather than
the outcome of those proceedings, it is not “a habeas corpus
application” and does not require pre-filing authorization.
Id.
at 532-33. Thus, Gonzalez simply empowers a petitioner to file
a challenge to the integrity of his habeas proceedings in a Rule
60(b) motion without obtaining pre-filing authorization from an
appellate court. Gonzalez does not empower a petitioner to
appeal the denial of such a challenge without obtaining a COA.
The majority elides the distinction between the two forms of
authorization, notwithstanding their separate statutory and
analytical bases.
Whether a petitioner must first obtain a COA to appeal a
Rule 60(b) denial is, in fact, a question the Gonzalez Court
expressly declined to resolve. Id. at 535 n.7. But, citing our
decision in Reid, the Court acknowledged in dicta that “[m]any
24
Courts of Appeals” impose such a COA requirement. Id. at 535.
And the Court even intimated that this approach was the correct
one. See
id. at 535 n.7 (noting COA requirement for 60(b)
appeals is “a more plausible and effective screening
requirement, with sounder basis in the statute” than requiring
pre-filing authorization for 60(b) motions in the first
instance). Far from undercutting Reid’s logic then, Gonzalez
actually all but endorses it.
Accordingly, the majority’s heavy reliance on Gonzalez is
misplaced. The majority correctly notes that Gonzalez requires
“that we treat true Rule 60(b) motions differently from
successive habeas petitions.” Indeed we must. And a district
court that fails to do so commits error. But that conclusion
does not answer the question now before us, i.e., whether a
petitioner denied Rule 60(b) relief can, absent a COA, obtain
appellate review. Reid held that we lack jurisdiction to
entertain such an appeal and Gonzalez does not abrogate that
holding.
The other case on which the majority relies, Harbison v.
Bell, 556 U.S. 180 (2009), did consider the COA provision. The
Harbison Court held a COA “not necessary” to appeal an order
denying a request for counsel, reasoning that the COA provision
applies only to “final orders that dispose of the merits of a
habeas corpus proceeding.”
Id. at 183. The majority concludes
25
that “[a] jurisdictional dismissal” of a Rule 60(b) motion, like
the request for counsel in Harbison, “is so far removed from the
merits of the underlying habeas petition” that it, too, does not
“dispose of the merits.”
That conclusion is, in my view, simply wrong. A final
order that does not “consider[] the merits” of a habeas petition
can certainly dispose of the merits. A Rule 60(b) motion “to
reopen proceedings” seeks to put at issue claims that have been
resolved by final judgment. United States v. MacDonald, 641
F.3d 596, 603 (4th Cir. 2011); see also Fed. R. Civ. P. 60(b).
An order foreclosing such relief clearly “disposes of the
merits” of claims the movant sought to relitigate. An order
denying a request for counsel, like that at issue in Harbison,
by contrast, leaves the merits of the underlying claims entirely
unaffected. The majority apparently believes that only by
“developing a nexus . . . to the merits” can an order dispose of
the merits. Nothing in Harbison suggests that the Supreme Court
intended to alter the plain meaning of the word “dispose” in
this manner.
Nor does anything in Harbison indicate that the Court there
intended to exempt an order dismissing a Rule 60(b) motion from
the COA requirement. After all, a mere four years earlier, the
Court had noted in Gonzalez that “[m]any Courts of Appeals . . .
requir[e] a habeas petitioner to obtain a COA as a prerequisite
26
to appealing the denial of a Rule 60(b) motion.” 545 U.S. at
535. The Harbison Court made no reference to Rule 60(b), let
alone suggested that it intended to partially abrogate what it
had so recently recognized as a widespread, “plausible and
effective” practice.
Id. at 535 n.7.
The majority’s assertion that it abrogates “only a small
part of Reid’s reasoning” gives me little comfort. The majority
does limit its holding to an “order dismissing a Rule 60(b)
motion as a successive habeas application,” leaving for another
day whether an order denying a Rule 60(b) motion continues to
require a COA. But we have never treated Rule 60(b) denials and
Rule 60(b) dismissals differently for COA purposes. See Reid,
369 F.3d at 375 (requiring COA for all “appeals from Rule 60(b)
motions in habeas cases”). This is, of course, because the COA
provision broadly covers “final order[s]” in habeas proceedings.
28 U.S.C. § 2253(c)(1). A jurisdictional dismissal is no less a
“final order” than a denial on the merits. Thus, the majority’s
purported preservation of a portion of Reid rests on decidedly
shaky ground.
Moreover, if the majority’s assertedly “small” holding did
remain good law, it would yield a very strange result. Under
this regime, we would still require a COA to appeal the denial
of a Rule 60(b) motion on its merits, see Reid, 369 F.3d at 369,
and to appeal the dismissal of a § 2255 motion as successive,
27
see Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004). But
when a district court dismisses a Rule 60(b) motion as actually
a successive § 2255 motion in Rule 60(b) clothing, no COA would
be necessary. This seems to me to make little sense.
Though I believe neither Gonzalez nor Harbison justifies
the result reached by the majority, I am not without sympathy
for McRae. As the Government concedes, the district court erred
in not permitting him to separate his “true” Rule 60(b) claims
from those that were successive habeas claims. See Appellee’s
Br. 49-50. But the purpose of a COA is “to prevent frivolous
cases from clogging appellate dockets and to promote finality.”
United States v. Vargas, 393 F.3d 172, 174 (D.C. Cir. 2004). To
that end, Congress has stripped courts of appeals of
jurisdiction in habeas cases where the lack of a constitutional
injury is plain. See
Reid, 369 F.3d at 371.
This is such a case. Binding circuit precedent thus
requires dismissal of this appeal. 2 Because I believe the
Supreme Court has not overruled that precedent, I must
respectfully dissent.
2
The concurrence’s support of my dissent in Blakely v.
Wards, 738 F.3d 607 (2013) (en banc), is gratifying. But even
if my reasoning there applied in the very different context
here, we could not follow it given that binding circuit
precedent -- the en banc majority in Blakely -- rejected my
rationale.
28
