Decided: July 13, 2015
The Fourth Circuit held that the recent Supreme Court jurisprudence is clear that the defendant’s motion constitutes a mixed Federal Rules of Civil Procedure 60(b) and 28 U.S.C. § 2253(c)(1)(B) and remanded to the district court to allow the defendant the opportunity to decide whether to abandon his improper claim or to proceed with a successive habeas petition.
In 2004, Immigration and Customs Enforcement (ICE) began investigating McRae’s codefendant, Rodney Green, after becoming suspicious of drug trafficking. The ICE Agent learned that learned that Green and McRae had traveled to Jamaica along with other women, Spears, Bailey, and Harris. The women were stopped at Charlotte Douglas International Airport and customs agents seized cocaine and marijuana. Bailey identified McRae, and he was later arrested and charged with four drug charges in February 2005. After a three-day trial in September, McRae was convicted of all charges and was sentenced to 210 months imprisonment.
McRae filed a petition in 2008 under 28 U.S.C § 2255 to vacate the sentence claiming ineffective assistance of counsel at trial and prosecutorial misconduct. Later without holding an evidentiary hearing, the district court granted the government’s motion for summary judgment and the Fourth Circuit determined that McRae could not appeal absent a Certificate of Appealability (COA). After unsuccessfully filing petitions for rehearing and a writ of certiorari, he filed a motion entitled “Motion for Relief from Judgment 60(b)(1)(3)(6).” In his motion he alleged five errors in the district court’s § 2255 proceedings: 1) the district court falsely stated that the court had not mentioned counsel’s failure to move to suppress when denying counsel’s motion 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 one of the ICE Agent’s testimony that McRae knew his rights; and 5) the district court misquoted the ICE Agent as telling McRae an attorney would be appointed for him if he could not afford one. McRae’s Rule 60(b) motion for lack of subject-matter jurisdiction was dismissed and the court held that the motion was a successive § 2255 motion for which he failed to obtain preauthorization under 28 U.S.C. § 2244(b)(3), and declining to issue a COA. The issue for the Fourth Circuit is whether McRae’s appeal of the district courts dismissal of his Rule 60(b) motion as an unauthorized § 2255 motion is subject to the COA requirement.
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. In a habeas proceeding, a Rule 60(b) motion which attacks “the substance of the federal court’s resolution of a claim on the merits” is not a true Rule 60(b) motion, but instead a successive habeas petition. Gonzales v. Crosby, 545 U.S. 524, 531-32 (2005). The district court does not allow a successive habeas petition to be filed without preauthorization from a court of appeals. The court of appeals may issue a COA only if the applicant has made a substantial showing of the denial of a constitutional right. However, a Rule 60(b) motion that attacks a defect in the habeas proceedings is a true Rule 60(b) motion and is not subject to the preauthorization agreement.
The Fourth Circuit held that there was no need to decide whether it needed to 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. Both parties agree that the district court erred in dismissing McRae’s motion as an impermissible successive § 2255 petition. McRae argues, and the government agrees, that his first, second, fourth, and fifth claims are properly categorized as Rule 60(b) claims. However, the government contends that 1) McRae’s Rule 60(b) claims were untimely, and 2) he failed to make the requisite showing of extraordinary circumstances.
Under the Federal Rules of Civil Procedure, Rule 60(b) motions must be made no more than a year after the entry of judgment or order of the date of the proceeding. McRae filed his motion nearly 18 months after the district court denied the § 2255 motion. Therefore, the government argues that the motion is barred. However, McRae argues that this decision should be made by the district court so he has the opportunity to come forward with evidence that might justify the application of equitable tolling or otherwise establish the motion should not be time-barred. Therefore, the Fourth Circuit determined that the proper action was to remand the case back to the district court.
Dissenting, Justice Motz determined it was inappropriate for the majority to hold that a habeas petitioner need not obtain a COA before appealing a district court’s order denying a Rule 60(b) motion as an improper successive habeas petition. Justice Motz believed that this holding was contradictive to binding circuit precedent which requires the dismissal of this appeal.
Austin T. Reed