United States v. Newby

Opinion

Case: 25-40621 Document: 37-1 Page: 1 Date Filed: 05/06/2026

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED May 6, 2026 No. 25-40621 Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Robbie Newby,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:15-CV-131 USDC No. 6:13-CR-35-1 ______________________________

PUBLISHED ORDER ORDER: Robbie Newby, federal prisoner # 21051-078, moves for a certificate of appealability (“COA”) to appeal the district court’s dismissal of his purported Federal Rule of Civil Procedure 60(b) motion as an unauthorized successive 28 U.S.C. § 2255 motion. This court may issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Castro v. United States, 30 F.4th 240, 248 (5th Cir. 2022) (dismissing for lack of jurisdiction because the applicant lacked a COA Case: 25-40621 Document: 37-1 Page: 2 Date Filed: 05/06/2026

No. 25-40621

for a claim based on the denial of a constitutional right). Here, Newby does not seek a COA based on a denial of a constitutional right. He requests a COA to appeal “[w]hether [his] Rule 60(b)(6) motion was a second or successive petition,” and “whether [his] Rule 59(e) motion [to amend that Rule 60 judgment] was timely.” ECF 17 at 2. Neither of those issues implicates the denial of a constitutional right. Even if Newby’s requested COA did depend on the denial of a constitutional right, this court still could not grant him one. A Rule 60(b) motion qualifies as a second-or-successive habeas petition if it advances a constitutional “claim.” As the Court explained in Gonzalez v. Crosby, a “motion that seeks to add a new ground for relief” or otherwise “attacks the federal court’s previous resolution of a claim on the merits” is really a second- or-successive request for postconviction relief. 545 U.S. 524, 532 (2005). And Congress mandated that applicants seeking such relief must first seek permission from the court of appeals. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). The standard for granting permission to file a second-or- successive petition is nearly insurmountable: The applicant must make a “prima facie showing” that his claim relies on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” or new evidence that renders him innocent. Id. § 2244(b)(3)(C), (b)(2)(A)– (B); id. § 2255(h). That showing is far higher than the “substantial showing of the denial of a constitutional right” required to obtain a COA. Id. § 2253(c)(2). So applicants who seek to challenge the merits of their conviction cannot use Rule 60(b) plus a COA to circumvent Congress’s restrictions on second-or-successive petitions. All of that is to say that Newby’s path for relief—if one exists at all— cannot run through § 2253(c). “[W]hen a second or successive petition for habeas corpus relief . . . is filed in the district court without the required authorization by this court, the district court should transfer the petition or

2 Case: 25-40621 Document: 37-1 Page: 3 Date Filed: 05/06/2026

motion to this court in the interest of justice pursuant to § 1631.” Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam) (citing the transfer rule outlined in 28 U.S.C. § 1631); see also Khalil v. President, 164 F.4th 259, 270 (3d Cir. 2026) (per curiam) (similar). That way, this court may consider whether to grant the application under the proper second-or- successive standard. See 28 U.S.C. § 2244(b)(3). Newby’s application for a COA is DISMISSED. Newby’s application to proceed IFP is DENIED AS MOOT.

___________________________ Andrew S. Oldham United States Circuit Judge