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Criminal Practice — No COA Needed for Court Review

U.S. v. McRae (Lawyers Weekly No. 15-01-0712, 28 pp.) (Gregory, J.) No. 13-6878, July 13, 2015; USDC at Charlotte, N.C. (Conrad, J.) 4th Cir.

Holding: Under recent Supreme Court jurisprudence, the 4th Circuit holds it can review the district court’s categorization of defendant’s 22 U.S.C. § 2255 motion as an impermissible successive petition without first issuing a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c)(1)(B); because we find defendant’s motion constitutes a mixed Rule 60(b)/ § 2255 motion, we remand to the district court to allow defendant a chance to decide whether to abandon his improper claim or to proceed with a successive habeas petition.

Based on the Supreme Court’s reasoning in Gonzales v. Crosby, 545 U.S. 524 (2005), 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.

The parties agree that the district court erred in dismissing defendant’s motion as an impermissible successive § 2255 petition. Defendant argues, and the government agrees, that his first, second, 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 when 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. Defendant was not given that opportunity here.

The government contends we should affirm dismissal on alternative grounds that either defendant’s Rule 60(b) claims were untimely, or defendant failed to make the requisite showing of extraordinary circumstances. However, we hold the proper course of action is to remand.

Reversed and remanded.


Wynn, J.: Today we disagree about whether dismissals and denials can be conflated for purposes of certificates of appealability. Our dissenting colleague has viewed the word dismiss as having a very narrow and distinct definition learned in the first year of law school.

There must be a distinction between “actual dismissals” and denials. Otherwise, we run the risk of improperly restricting access to the courts. I must therefore agree with the majority opinion.


Motz, J.: The majority holds that a habeas petitioner need not obtain a certificate of appealability 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. Under Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004), we lack jurisdiction to hear this appeal and so should dismiss it.

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