Case: 18-12360 Date Filed: 04/15/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12360 Non-Argument Calendar ________________________
D.C. Docket No. 1:07-cr-00045-HL-TQL-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
W. DEXTER HARRISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(April 15, 2020)
Before JORDAN, TJOFLAT and MARCUS, Circuit Judges.
PER CURIAM:
W. Dexter Harrison, proceeding pro se, appeals the district court’s dismissal
of his Fed. R. Civ. P. 60(b)(6) motion to set aside the court’s judgment denying his
28 U.S.C. § 2255 motion to vacate, arguing that the court’s denial of habeas Case: 18-12360 Date Filed: 04/15/2020 Page: 2 of 6
counsel’s motion to withdraw violated his due process rights to represent himself
and that new evidence shows that he is actually innocent, which constitute
extraordinary circumstances warranting Rule 60(b)(6) relief. The government
argues that we lack jurisdiction to consider the merits of this appeal because Harrison
did not obtain a Certificate of Appealability (“COA”), nor can he make the requisite
showing for one. After thorough review, we dismiss the appeal.
Federal law requires that a prisoner whose § 2255 motion to vacate has been
denied by a district court first obtain a COA. 28 U.S.C. § 2253(c)(1). A COA is
also required to appeal “any denial of a Rule 60(b) motion for relief from a judgment
in a [28 U.S.C.] § 2254 or § 2255 proceeding.” Gonzalez v. Sec’y for Dep’t of Corr.,
366 F.3d 1253, 1263 (11th Cir. 2004) (en banc), aff’d on other grounds sub nom.
Gonzalez v. Crosby, 545 U.S. 524 (2005). “This is a jurisdictional prerequisite
because the COA statute mandates that unless a circuit justice or judge issues a
[COA], an appeal may not be taken to the court of appeals. . . As a result, until a
COA has been issued federal courts of appeals lack jurisdiction to rule on the merits
of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(citation, brackets and quotation omitted).
To merit a COA, a prisoner must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court has
denied a motion on procedural grounds, the petitioner must show that jurists of
2 Case: 18-12360 Date Filed: 04/15/2020 Page: 3 of 6
reason would find debatable whether: (1) the district court was correct in its
procedural ruling, and (2) he has stated a valid claim of the denial of a constitutional
right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). If the movant fails to satisfy
either prong of this two-part test, a court should deny a COA. Id.
Rule 60(b)(6) provides that a court may relieve a party from a final judgment
for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). A Rule 60(b)(6)
motion, however, must be made within a “reasonable time,” see id. 60(c)(1), and
requires a showing of “extraordinary circumstances” that will “rarely occur in the
habeas context,” Gonzalez, 545 U.S. at 535. What constitutes a reasonable time is
determined by considering “whether the parties have been prejudiced by the delay
and whether a good reason has been presented for failing to take action sooner.”
BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1275 (11th Cir. 2008)
(quotation omitted). The appeal of a Rule 60(b) motion is limited to a determination
of whether the district court abused its discretion in denying the motion. See Rice
v. Ford Motor Co., 88 F.3d 914, 918-19 (11th Cir. 1996).
Under the prior panel precedent rule, we are bound by our prior decisions
unless and until they are overruled by the U.S. Supreme Court or this Court en banc.
United States v. Vega Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). Arguments
not raised in the district court are waived on appeal. Johnson v. United States, 340
3 Case: 18-12360 Date Filed: 04/15/2020 Page: 4 of 6
F.3d 1219, 1228 n.8 (11th Cir. 2003). There is no constitutional right to counsel in
federal habeas proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
Here, Harrison was required to have obtained a COA from either the district
court or this Court to proceed on appeal, and he has not done so. See Gonzalez, 366
F.3d at 1263. Without a COA, we lack jurisdiction to rule on the merits this appeal.
See Miller-El, 537 U.S. at 336.
But even if we were to construe his pro se notice of appeal as a motion for a
COA, Harrison cannot make the requisite showing for a COA because reasonable
jurists would not find debatable whether the district court was correct in its
procedural ruling or whether he stated a valid claim of the denial of a constitutional
right. See Slack, 529 U.S. at 484. For starters, Harrison waited over four years after
the district court’s denial of his § 2255 motion, and about two years after the
corresponding mandate issued in this Court, to file the instant Rule 60(b)(6) motion,
and he provided no reason to the district court to explain the delay. See BUC Int’l
Corp., 517 F.3d at 1275. While he argued to the district court that there was no time
limit on when he could challenge the judgment, he argues for the first time on appeal
that it took him three years to locate his codefendant in another prison. Not only has
he waived that arguing by not raising it below, Johnson, 340 F.3d at 1228, but he
provides only a conclusory statement about the delay, claiming “numerous
obstacles.” On this record, Harrison cannot show that reasonable jurists would
4 Case: 18-12360 Date Filed: 04/15/2020 Page: 5 of 6
debate whether the district court abused its discretion in finding his Rule 60(b)
motion untimely. Slack, 529 U.S. at 484.
Further, even if Harrison had filed his Rule 60(b)(6) motion within a
reasonable time, he has not shown the “extraordinary circumstances” required to
succeed. See Gonzalez, 545 U.S. at 535. Harrison raised the same claim in his Rule
60(b) motion that we already have considered and denied in Harrison’s earlier appeal
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Case: 18-12360 Date Filed: 04/15/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12360 Non-Argument Calendar ________________________
D.C. Docket No. 1:07-cr-00045-HL-TQL-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
W. DEXTER HARRISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(April 15, 2020)
Before JORDAN, TJOFLAT and MARCUS, Circuit Judges.
PER CURIAM:
W. Dexter Harrison, proceeding pro se, appeals the district court’s dismissal
of his Fed. R. Civ. P. 60(b)(6) motion to set aside the court’s judgment denying his
28 U.S.C. § 2255 motion to vacate, arguing that the court’s denial of habeas Case: 18-12360 Date Filed: 04/15/2020 Page: 2 of 6
counsel’s motion to withdraw violated his due process rights to represent himself
and that new evidence shows that he is actually innocent, which constitute
extraordinary circumstances warranting Rule 60(b)(6) relief. The government
argues that we lack jurisdiction to consider the merits of this appeal because Harrison
did not obtain a Certificate of Appealability (“COA”), nor can he make the requisite
showing for one. After thorough review, we dismiss the appeal.
Federal law requires that a prisoner whose § 2255 motion to vacate has been
denied by a district court first obtain a COA. 28 U.S.C. § 2253(c)(1). A COA is
also required to appeal “any denial of a Rule 60(b) motion for relief from a judgment
in a [28 U.S.C.] § 2254 or § 2255 proceeding.” Gonzalez v. Sec’y for Dep’t of Corr.,
366 F.3d 1253, 1263 (11th Cir. 2004) (en banc), aff’d on other grounds sub nom.
Gonzalez v. Crosby, 545 U.S. 524 (2005). “This is a jurisdictional prerequisite
because the COA statute mandates that unless a circuit justice or judge issues a
[COA], an appeal may not be taken to the court of appeals. . . As a result, until a
COA has been issued federal courts of appeals lack jurisdiction to rule on the merits
of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(citation, brackets and quotation omitted).
To merit a COA, a prisoner must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court has
denied a motion on procedural grounds, the petitioner must show that jurists of
2 Case: 18-12360 Date Filed: 04/15/2020 Page: 3 of 6
reason would find debatable whether: (1) the district court was correct in its
procedural ruling, and (2) he has stated a valid claim of the denial of a constitutional
right. Slack v. McDaniel, 529 U.S. 473, 484 (2000). If the movant fails to satisfy
either prong of this two-part test, a court should deny a COA. Id.
Rule 60(b)(6) provides that a court may relieve a party from a final judgment
for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). A Rule 60(b)(6)
motion, however, must be made within a “reasonable time,” see id. 60(c)(1), and
requires a showing of “extraordinary circumstances” that will “rarely occur in the
habeas context,” Gonzalez, 545 U.S. at 535. What constitutes a reasonable time is
determined by considering “whether the parties have been prejudiced by the delay
and whether a good reason has been presented for failing to take action sooner.”
BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1275 (11th Cir. 2008)
(quotation omitted). The appeal of a Rule 60(b) motion is limited to a determination
of whether the district court abused its discretion in denying the motion. See Rice
v. Ford Motor Co., 88 F.3d 914, 918-19 (11th Cir. 1996).
Under the prior panel precedent rule, we are bound by our prior decisions
unless and until they are overruled by the U.S. Supreme Court or this Court en banc.
United States v. Vega Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). Arguments
not raised in the district court are waived on appeal. Johnson v. United States, 340
3 Case: 18-12360 Date Filed: 04/15/2020 Page: 4 of 6
F.3d 1219, 1228 n.8 (11th Cir. 2003). There is no constitutional right to counsel in
federal habeas proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
Here, Harrison was required to have obtained a COA from either the district
court or this Court to proceed on appeal, and he has not done so. See Gonzalez, 366
F.3d at 1263. Without a COA, we lack jurisdiction to rule on the merits this appeal.
See Miller-El, 537 U.S. at 336.
But even if we were to construe his pro se notice of appeal as a motion for a
COA, Harrison cannot make the requisite showing for a COA because reasonable
jurists would not find debatable whether the district court was correct in its
procedural ruling or whether he stated a valid claim of the denial of a constitutional
right. See Slack, 529 U.S. at 484. For starters, Harrison waited over four years after
the district court’s denial of his § 2255 motion, and about two years after the
corresponding mandate issued in this Court, to file the instant Rule 60(b)(6) motion,
and he provided no reason to the district court to explain the delay. See BUC Int’l
Corp., 517 F.3d at 1275. While he argued to the district court that there was no time
limit on when he could challenge the judgment, he argues for the first time on appeal
that it took him three years to locate his codefendant in another prison. Not only has
he waived that arguing by not raising it below, Johnson, 340 F.3d at 1228, but he
provides only a conclusory statement about the delay, claiming “numerous
obstacles.” On this record, Harrison cannot show that reasonable jurists would
4 Case: 18-12360 Date Filed: 04/15/2020 Page: 5 of 6
debate whether the district court abused its discretion in finding his Rule 60(b)
motion untimely. Slack, 529 U.S. at 484.
Further, even if Harrison had filed his Rule 60(b)(6) motion within a
reasonable time, he has not shown the “extraordinary circumstances” required to
succeed. See Gonzalez, 545 U.S. at 535. Harrison raised the same claim in his Rule
60(b) motion that we already have considered and denied in Harrison’s earlier appeal
-- that the district court’s error in denying his habeas counsel’s motion to withdraw
prevented him from raising other § 2255 claims, like his trial counsel’s failure to
move to sever and the government’s failure to disclose Harrell’s exculpatory
evidence. Because our prior order already rejected these same claims, we cannot
say that they now somehow constitute extraordinary circumstances.
To the extent Harrison argues that a change in the law warrants relief under
Rule 60(b)(6), he has failed to show how Christeson v. Roper, 574 U.S. 373, 373
(2015), applies here, since that case did not involve a change in the law but
considered a capital defendant’s entitlement to conflict-free counsel in a habeas
proceeding under 18 U.S.C. § 3599. Harrison is not a capital defendant and does
not have a statutory right to counsel under § 3599, nor does he have a constitutional
right to counsel in his habeas proceeding. See Finley, 481 U.S. at 555. Nor is there
any basis to Harrison’s claim that his codefendant’s declaration, which he did not
have at the time of our prior decision, constitutes extraordinary circumstances
5 Case: 18-12360 Date Filed: 04/15/2020 Page: 6 of 6
warranting Rule 60(b)(6) relief. In that declaration, his codefendant claims only that
he has “no knowledge” of Harrison’s involvement with the arson. However, that
statement is somewhat self-serving since it suggests that the codefendant was not
involved in the arson, and, without more, does not come anywhere near proving
Harrison’s actual innocence.
In short, because Harrison cannot show that reasonable jurists would debate
whether the district court abused its discretion by finding that the Rule 60(b) motion
was untimely and meritless, a COA is not warranted and we dismiss the appeal. See
Miller-El, 537 U.S. at 336.
DISMISSED.