United States v. Hill

418 F. App'x 166

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 21, 2011
• Docket: 09-6049
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6049

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID HILL,

Defendant - Appellant.

No. 09-6413

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:01-cr-00191-CMH-1)

Submitted: February 25, 2011 Decided: March 21, 2011

Before NIEMEYER, SHEDD, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion.

David Hill, Appellant Pro Se. Dana James Boente, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

In this consolidated proceeding, David Hill seeks to

appeal two orders entered by the district court: (1) an order

construing his first Fed. R. Civ. P. 60(b) motion as a Fed. R.

Crim. P. 33 motion for new trial and dismissing it as time-

barred (No. 09-6049); and (2) an order construing his second

Rule 60(b) motion as a motion for reconsideration and denying it

(No. 09-6413). ∗ We dismiss the appeals.

“[D]istrict courts must treat Rule 60(b) motions as

successive collateral review applications when failing to do so

would allow the applicant to evade the bar against relitigation

of claims presented in a prior application or the bar against

litigation of claims not presented in a prior application.”

United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003)

(emphasis in original) (internal quotation marks omitted).

Accordingly, “a motion directly attacking the prisoner’s

conviction or sentence will usually amount to a successive

application, while a motion seeking a remedy for some defect in

the collateral review process will generally be deemed a proper

motion to reconsider.” Id. at 207.

∗ We initially ordered a limited remand in No. 09-6413 for a determination of whether the notice of appeal was timely filed. Upon further consideration, we conclude that the appeals are civil in nature, and No. 09-6413 is therefore timely.

3 To the extent that Hill’s Rule 60(b) motions in both

appeals attack his convictions or restate issues previously

raised in his 28 U.S.C.A. § 2255 (West Supp. 2010) motion, we

conclude that the motions do not comport with the purpose of

Rule 60(b) and that the district court should have dismissed

them as unauthorized § 2255 motions. See Winestock, 340 F.3d at

207 (“[N]ew legal arguments or proffers of additional evidence

will usually signify that the prisoner is not seeking relief

available under Rule 60(b) but is instead continuing his

collateral attack on his conviction or sentence.”).

Accordingly, we deny Hill’s motion for a certificate of

appealability and dismiss this portion of the appeals.

Hill’s contention, in No. 09-6049, that the Government

proceeded in a fraudulent manner during the § 2255 proceeding,

however, is the proper subject of a Rule 60(b) motion. See id.

(“[A]n example of a proper Rule 60(b) claim is an allegation

that government agents perpetrated a fraud on the court during

the collateral review proceedings.”). An appeal may not be

taken to this court from the final order in a proceeding under

§ 2255, including the denial of a Rule 60(b) motion seeking

relief from the underlying denial of a post-conviction motion,

unless a circuit justice or judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone,

369 F.3d 363, 368-70 (4th Cir. 2004). When the district court

4 denies relief on procedural grounds, the prisoner must

demonstrate both that the dispositive procedural ruling is

debatable and that the motion states a debatable claim of the

denial of a constitutional right. Slack v. McDaniel, 529 U.S.

473, 484-85 (2000).

While the district court may have procedurally erred

in denying Hill’s fraud upon the court claim, we conclude that

application of an alternative procedural ground renders Hill’s

appeal futile. See Reid, 369 F.3d at 372 n.5 (suggesting that

procedural ground not employed by district court may render

appeal futile). Here, Hill did not file a timely Rule 60(b)(3)

motion because he filed it three years after the district court

denied § 2255 relief, well beyond the authorized one-year

period. Great Coastal Express, Inc. v. Int’l Bhd. of Teamsters,

675 F.2d 1349, 1355 (4th Cir. 1982) (“A motion under [Rule]

60(b)(3), however, must be made within one year after the

judgment was entered.”). We therefore deny a certificate of

appealability and dismiss the fraud upon the court claim.

Additionally, under Winestock, we have considered

Hill’s notices of appeal and informal brief as an application to

file a second or successive § 2255 motion. In order to obtain

authorization to file a successive § 2255 motion, a prisoner

must assert claims based on either:

5 (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C.A. § 2255(h). Because Hill’s claims do not satisfy

either of these criteria, we conclude that authorization to file

a successive § 2255 motion should not be granted.

Accordingly, while we grant Hill’s motions to amend

his informal brief, we dismiss the majority of Hill’s claims set

forth in his two Rule 60(b) motions as unauthorized successive

§ 2255 motions and deny a certificate of appealability as to

Hill’s fraud upon the court claim and dismiss that claim, as

well. We also deny Hill authorization to file a successive

§ 2255 motion. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

DISMISSED